Motion to Amend in Bankers Standard Insurance Company As Subrogee Of Russell Umphenour And Debra London v. North Moore Nyc Property, Inc., Nj Paz Painting Services, Inc.| Trellis.Law

On May 23, 2017 a Complaint,Petition was filed involving a dispute between Bankers Standard Insurance Company As Subrogee Of Russell Umphenour And Debra London, and Nj Paz Painting Services, Inc., North Moore Nyc Property, Inc., for Commercial - Contract in the District Court of New York County.

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FILED: NEW YORK COUNTY CLERK 05/03/2018 02:33 PM INDEX NO. 652792/2017
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 05/03/2018

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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BANKERS STANDARD INSURANCE COMPANY
as subrogee ofRUSSELL UMPHENOUR and
DEBRA LONDON,
Index No.: 652792/2017

Plaintiff,

v. SUPPLEMENTAL
SUMMONS

NORTH MOORE NYC PROPERTY, INC., AND
NJ PAZ PAINTING SERVICES, INC.

Defendants.
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To the above named 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 Plaintiff's Attorney(s) 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 served upon you within the State of New York),and in case of your

failure to appear or judgment will be taken against you by default for the relief demanded

herein.

Dated: New York, New York
April 20, 2018

Defendant's address:

NORTH MOORE NYC PROPERTY, INC.
c/o PAVIA & HARCOURT LLP
230 PARK AVENUE, SUITE 2401

NEW YORK, NY 10169

NORTH MOORE NYC PROPERTY, INC.
c/o Secretary of State of New York

VIA PROCESS SERVER:
NJ PAZ PAINTING SERVICES, INC.
217 Woodward Road

Englishtown, NJ 07726

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Notice:the nature of this action is:Negligence.

Upon your failure to judgment will be taken against you by default for the sum

exceeding $68,860.79 with interest from date of accrual, and the costs of this action.

Dated: New York, New York
April 20, 2018

By:
Robert A. Stern, Esq.
Thomas J. Hennessey, Esq.
Clausen Miller P.C.
396
28 Liberty Street, Floor

New York, New York 10005

(212) 805-3900

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Plaintiff,
v. AMENDED
COMPLAINT
NORTH MOORE NYC PROPERTY, INC., AND
NJ PAZ PAINTING SERVICES, INC.

Defendant.
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Plaintiff, BANKERS STANDARD INSURANCE COMPANY, as subrogee of RUSSELL

UMPHENOUR and DEBRA LONDON, by and through itsattorneys, Clausen Miller, P.C., as and

for a Complaint against Defendant, alleges, upon information and belief, the following:

PARTIES & JURISDICTION

1. At all times relevant hereto, Plaintiff BANKERS STANDARD INSURANCE COMPANY

("Bankers"
("Bankers") is an insurance company authorized to do business within the State of New York,

with itsprincipal place of business at 436 Walnut Street, Philadelphia, PA 19106.

(" Moore"
2. At all times relevant hereto, NORTH MOORE NYC PROPERTY, INC. ("North Moore"), is

a domestic corporation with a principal place of business located at 230 Park Avenue, Suite

2401, New York, NY 10169.

3. At alltimes relevant hereto, NJ PAZ PAINTING SERVICES, INC. ("NJ Paz"), is a foreign

corporation with a principal place of business located at 217 Woodward Road, Englishtown,

NJ 07726.

4. At all relevant times herein, Plaintiff's subrogor, RUSSELL UMPHENOUR and DEBRA

"Umphenour" Insured"
LONDON (jointly, hereinafter or "Plaintiff's Insured") owned a condominium

("
with the specific unit address of 25 N. Moore St., Unit 9B, New York, NY 10013 ("Unit 9B").

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5. At all relevant times herein, North Moore owned a condominium with the specific unit address

("
of 25 N. Moore St., Unit 10B, New York, NY 10013 ("Unit 10B").

6. At allrelevant times, Defendant NJ Paz was a general contractor and performed renovation

within the Unit 10B.

7. At all relevant times herein, Bankers issued a policy of insurance bearing Policy Number

"Policy"
267926822 (the "Policy") for Umphenour, providing coverage for Unit 98 for certain property

and casualty losses, such as those incurred herein.

FACTUAL ALLEGATIONS

8. On or about September 11, 2015, the heating, ventilation and air conditioning unit (hereinafter

"HVAC unit") within Unit 108 leaked causing water to intrude into and damage Unit 9B.

9. At all relevant times on or about September 11, 2015, Defendants were responsible for

maintenance and repair of the HVAC unit within Unit 10B.

Defendants'
10. As resulting from Defendants failure to maintain and repair the HVAC unit, the HVAC unit

leaked causing water to intrude into and damage Unit 9B.

11. The leaking water from Unit 10B's HVAC unit ran down to the condominium unit owned by

Umphenour, Unit 9B, thereby causing severe water and mold damage within Unit 9B.

12. As a direct, proximate and foreseeable result of the water and mold damage to Unit 9B,

Umphenour suffered damage to real property, personal property, contents and alternate living

expenses.

13. As a result of the foregoing, Plaintiff indemnified Umphenour pursuant to the Policy.

14. Plaintiff is subrogated to Umphenour's right to recovery.

15. Plaintiff, by way of subrogation, sustained damages in an amount of Sixty-Eight Thousand

Eight Hundred Sixty Dollars and Seventy-Nine Cents ($68,860.79).

16. Plaintiff and its Insured did not in any way, shape or form contribute to the damages.

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17. Plaintiff requested restitution from Defendants for the damages, which Defendants refused

and/or failed to provide.

COUNT I:NEGLIGENCE AS TO ALL PARTIES

18. Plaintiff repeats, reiterates and realleges each and every allegation contained in paragraphs

"1" "17"
numbered through with the same force and effect as though fully set forth herein.

19. Defendants owed a duty to Plaintiff, by way of subrogation, to maintain, control and/or

supervise the conditions within Unit 10B, including, but not limited to, the HVAC unit, in a

careful, reasonable and non-negligent manner.

20. Defendants owed a duty to Plaintiff, by way of subrogation, to maintain, control and/or

supervise the conditions within Unit 10B, including, but not limited to, the HVAC unit, in a

manner which did not create a dangerous, hazardous, and unreasonably unsafe condition,

and/or increase the risk of harm to Unit 9B.

21. Defendants owed a duty to Plaintiff, by way of subrogation, to maintain, control and/or

supervise the conditions within Unit 10B, including, but not limited to, the HVAC unit, to

minimize the potential for damage to Unit 9B.

22. Defendants owed a duty to Plaintiff, by way of subrogation, to hire competent employees,

agents, servants, representatives, contractors and/or subcontractors to maintain, control and/or

supervise the conditions within Unit 10B, including, but not limited to,the HVAC unit.

23. The aforementioned duties were non-delegable.

Defendants'
24. actions, through its agents, representatives, and/or employees, were careless,

negligent and in breach of itsduties to Plaintiff and Plaintiff's Insured, and in breach of the

standard of care for condominium unit owners.

Defendants'
25. Defendants breach of its duties to Plaintiff and Plaintiff's Insured, and its standard of care as

a condominium unit owner, through its agents, representatives and/or employees, caused,

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allowed, and/or permitted conditions to exist in Unit 108 which were dangerous and hazardous

to the other condominium owners within the building, specifically Umphenour's Unit 9B.

26. As a direct, proximate and foreseeable result of the actions and/or inactions of Defendants and

its agents, representatives and/or employees, its failure to maintain the HVAC unit caused

water to leak from the HVAC unit which then ran down and entered into Unit 9B.

27. The leaking water from the HVAC unit within Unit 108 ran down to the condominium unit

owned by Umphenour, Unit 9B, thereby causing sever water and mold damage to Unit 9B.

28. As a direct, proximate and foreseeable result of the water and mold damage to Unit 9B,

Umphenour suffered damage to real property, personal property, contents and alternate living

expenses.

29. The damages suffered by Plaintiff, $68,860.79, were not due to any voluntary action and/or

contribution on the part of Plaintiff and/or Plaintiff's Insured.

30. Defendants were in the sole and exclusive care, custody and control of Unit 10B, allowing

water to leak from the HVAC unit and causing Plaintiff's damages.

31. Plaintiff will also rely upon res ipsa loquitor.

WHEREFORE, Plaintiff demands judgment against Defendants, jointly and severally, in

an amount of Sixty-Eight Thousand Eight Hundred Sixty Dollars and Seventy-Nine Cents

($68,860.79), together with interest, legal fees, costs, expenses, disbursements and such other relief

as the Court deems proper.

COUNT II: NUISANCE AS TO ALL PARTIES

"1"
32. Plaintiff repeats and reiterates each and every allegation in the paragraphs marked through

"31"
of this Complaint as if set forth in full herein.

33. The manner by which Defendants negligently, carelessly and/or recklessly maintained,

repaired, controlled and/or supervised the conditions within Unit 10B, including, but not

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limited to, the HVAC unit, caused, permitted and/or allowed a dangerous, hazardous and

unreasonably unsafe condition to exist, including, but not limited to, allowing water to leak

from the HVAC unit, leading to water running down into Unit 9B, and causing a substantial

and unreasonable interference with Plaintiff's Insured's use and enjoyment of Unit 9B.

Defendants'
34. Defendants unreasonable maintenance, repair, control and/or supervision of the conditions

within Unit 10B, including, but not limited to, the HVAC unit, caused damages to Plaintiff, by

way of subrogation.

Defendants'
35. As a direct and proximate result of Defendants unreasonable maintenance, repair, control

and/or supervision of the conditions within Unit 10B, including, but not limited to, the HVAC

unit, Plaintiff's Insured sustained damage to Unit 9B, the personal property and contents

within, and alternate living expenses.

36. As a direct, proximate and foreseeable result of the above described incident, Defendants

committed or allowed a nuisance to occur on Plaintiff's Insured, which nuisance caused

Plaintiff to suffer damages in the amount of Sixty-Eight Thousand Eight Hundred Sixty Dollars

and Seventy-Nine Cents ($68,860.79), together with interest, legal fees, costs.

37. Plaintiff's damages were in no way caused or contributed to by any act or failure to act by

Plaintiff and/or Plaintiff's Insured.

WHEREFORE, Plaintiff demands judgment against Defendants, jointly and severally, in

an amount of Sixty-Eight Thousand Eight Hundred Sixty Dollars and Seventy-Nine Cents

($68,860.79), together with interest, legal fees, costs, expenses, disbursements and such other relief

as the Court deems proper.

COUNT III: TRESPASS AS TO ALL PARTIES

"1"
38. Plaintiff repeats and reiterates each and every allegation in the paragraphs marked through

"37"
of this Complaint as if set forth in full herein.

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39. As a direct, proximate and foreseeable result of the above described incident, Defendants

committed or allowed a trespass to occur on Plaintiff's Insured, which trespass caused Plaintiff

to suffer damages in the amount of Sixty-Eight Thousand Eight Hundred Sixty Dollars and

Seventy-Nine Cents ($68,860.79), together with interest, legal fees, costs.

40. Plaintiff's damages were in no way caused or contributed to by any act or failure to act by

Plaintiff and/or Plaintiff's Insured.

WHEREFORE, Plaintiff demands judgment against Defendants, jointly and severally, in

an amount of Sixty-Eight Thousand Eight Hundred Sixty Dollars and Seventy-Nine Cents

($68,860.79), together with interest, legal fees, costs, expenses, disbursements and such other relief

as the Court deems proper.

COUNT IV: BREACH OF CONTRACT AS TO ALL PARTIES

"1"
41. Plaintiff repeats and reiterates each and every allegation in the paragraphs marked through

"40"
of this Complaint as if set forth in full herein.

42. Defendants entered into contractual relationships, wherein Defendants contractually agreed

and had a contractual duty to maintain, repair, control and/or supervise the conditions within

Unit 10B, including, but not limited to, the HVAC unit, and to hire competent employees,

agents, representatives, contractors and/or subcontractors to maintain, control and/or supervise

the conditions within Unit 10B, including, but not limited to, the HVAC unit.

43. Plaintiff, by way of subrogation, and Plaintiff's Insured were intended third-party beneficiaries

Defendants'
of contractual agreements regarding the duties described above.

44. Defendants breached itscontractual relationships and duties, by failing to properly and safely

maintain, repair, control and/or supervise the conditions within Unit 10B, including, but not

limited to, the HVAC unit, and to hire competent employees, agents, representatives,

contractors and/or subcontractors to maintain, control and/or supervise the conditions within

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Unit 10B, including, but not limited to, the HVAC unit, and causing and/or allowing a

condition to exist which damaged Unit 9B.

Defendants'
45. acts and/or omissions, on itsown and/or through its employees, agents, servants

Defendants'
and/or representatives, which caused the damage, were a breach of duties and

obligations under its contractual agreements.

Defendants'
46. As a direct and foreseeable result of breaches of its contractual agreements and/or

duties, Plaintiff, by way of subrogation, and Plaintiff's Insured sustained damages totaling

Sixty-Eight Thousand Eight Hundred Sixty Dollars and Seventy-Nine Cents ($68,860.79).

WHEREFORE, Plaintiff demands judgment against Defendants, jointly and severally, in an

amount of Sixty-Eight Thousand Eight Hundred Sixty Dollars and Seventy-Nine Cents

($68,860.79), together with interest, legal fees, costs, expenses, disbursements and such other relief

as the Court deems proper.

Dated: New York, New York
April 20, 2018 Respectfully submitted,

CLAUSEN MILLER P.C.

By:
Robert A. Stern, Esq.
Clausen Miller P.C.
Attorneys forPlaintiff
396
28 Liberty Street, Fl.
New York, New York 10005

(212) 805-3900

Defendant's address:

NORTH MOORE NYC PROPERTY, INC.
c/o PAVIA & HARCOURT LLP
230 PARK AVENUE, SUITE 2401

NEW YORK, NY 10169

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NORTH MOORE NYC PROPERTY, INC.

Secretary of State of New York

VIA PROCESS SERVER:
NJ PAZ PAINTING SERVICES, INC.
217 Woodward Road

Englishtown, NJ 07726

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Case Info

Judge

Debra A James Track Judge’s New Case

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Document Filed Date

May 03, 2018

Case Filing Date

May 23, 2017

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Complaint,Petition: Bankers Standard Insurance Company As Subrogee Of Russell Umphenour And Debra London v. North Moore Nyc Property, Inc., Nj Paz Painting Services, Inc.

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