Preview
FILED:
FILED : NEW
NEW YORK
YORK COUNTY
COUNTY CLERK
CLERK 06/26/2018 04:04 PM INDEX
INDEX NO.
NO. 150083/2014
150083/2014
01/06/2014|
NYSCEF
NYSCEF DOC.
DOC. NO.
NO. 133
1 RECEIVED
RECEIVED NYSCEF:
NYSCEF: 06/26/2018
01/06/2014
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
PÖŠE ÃÜÑf, 65ËÑËËÏ 4 ŠÖÑÑEÑ Ï LLP Date Filed:
R&R PROPERTIES LLC AND COMPUTERIZED
DIAGNOSTIC SCANNING ASSOCIATES, P.C. Index No. /
Plaintiff, Plaintiffdesignates NEW YORK
County as the place of trial
vs.
EXCALIBUR GROUP NA, LLC, A SUPERIOR
SERVICE AND REPAIR CO. INC., HOME SYSTEMS | SUMMONS
ENGINEERING, INC., PHILIPS HEALTHCARE,
PHILIPS MEDICAL SYSTEMS NORTH AMERICA
COMPANY, PHILIPS ELECTRONICS NORTH
AMERICA CORPORATION, PHILIPS MEDICAL
SYSTEMS NORTH AMERICA, INC., PHILIPS
HEALTHCARE INFORMATICS, INC. and ESTATE
OF MERLE H. EISENSTEIN
Defendants
__________________________________________Defendan_ts__________________j
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 thecomplaint is notserved with thissummons, to serve a noticeof appearance, on the plaintiff's
attorneys within
twenty (20) days afterthe service of thissummons, exclusive of the date of service (or withinthirty(30) days after
service iscomplete if this
summons isnot personally delivered to you within the State ofNew York);and in case of
your failure to appear or answer, judgment will be taken against you by default for the reliefdemanded in the
complaint.
NOTICE OF COMMENCEMENT OF ACTION SUBJECT TO MANDATORY ELECTRONIC RUNG
PLEASE TAKE NOTICE thatthe matter captioned above, which has been commenced by of
filing the accompanying
documents with the CountyClerk,is subject
to mandatoryelectronic pursuant
filing to Section202.S-bbof theUniform Rulesfor the
TrialCourts.Thisnoticeis being
served by Subdivision
as required (b) 13) of that
Section.
The New York StateCourts Electronic
FilingSystem ("NYSCEF") is designedfortheelectronic of
filing documents withthe
County Clerk and for the electronic
and the court serviceof thosedocuments,courtdocuments, and courtnoticesupon counsel and
parties.
self-represented Counsel and/orpartieswho do not the
notify courtof a claimedexemption (see below) as requiredby
Section202.S-bb(e)must Immediatelyrecordtheirrepresentation
within matter
the e-flied on the Consent page In NYSCEF. Failure
to do so mayresultIn an Inability
to receive
electronic
noticeof document filings.
Exemptions from mandatory are
e-filing limitedto:(1) attorneyswho in
certify good faiththatthey lack the computer
equipment and (along withallemployees) therequisiteknowledge tocomply; and (2) self-represented
partieswho choose not to
in e-filing.
participate Foradditionalinformation
about electronic
filing,
includingaccess tosection202.5-bb,consultthe NYSCEF
website or contact
at www.nycourts.qov/efile the NYSCEF Resource Center at 646-386-3033or efilePcourts.state.ny.us..us.
Plaintiffs'
The basis of Venue is: place of business
Which is: R&R Third Properties, LLC
1421 Third Avenue
New York, New York 10028
Rosenbaum, Rosenfeld & Sonnenblick, LLP
1421 Third Avenue
New York, New York 10028
Computerized Diagnostic Scanning
Associates
1421 Third Avenue
New York, New York 1002S
FILED: NEW YORK COUNTY CLERK 06/26/2018 04:04 PM INDEX NO. 150083/2014
NYSCEF DOC. NO. 133 RECEIVED NYSCEF: 06/26/2018
Dated: Kew Gardens, New York
January 6, 2014
LIPSIUS-BENHAIM LAW LLP
Attorneys forplaintiffs
By:
Ira S. Lipsius, Esq.
80-02 Kew Gardens Road, Suite 1030
Kew Gardens, New York 11415
212-981-8440
Defendants'
address:
EXCALIBUR GROUP NA LLC. A SUPERIOR SERVICE AND
175 Quincy Court REPAIR CO. INC.
Hopelawn, New Jersey 0886 393 Elvin Street
Staten Island, New York 10314
HOME SYSTEMS ENGINEERING, INC. PHILIPS MEDICAL SYSTEMS
229 Emerson Lane NORTH AMERICA COMPANY,
Berkeley Heights, New Jersey 07922 3000 Minuteman Road
Andover, MA 01810
PHILIPS HEALTHCARE, PHILIPS MEDICAL SYSTEMS
3000 Minuteman Road NORTH AMERICA, INC.,
42"d
Andover, MA 01810 100 East 42 Street
New York, NY 10017
PHILIPS ELECTRONICS PHILIPS HEALTHCARE
NORTH AMERICA CORPORATION, INFORMATICS, INC.
3000 Minuteman Road 3000 Minuteman Road
Andover, MA 01810 Andover, MA 01810
And And
Corporate Service Company Corporate Service Company
80 State Street 80 State Street
Albany, NY 12202-2543 Albany, NY 12202-2543
ESTATE OF MERLE H. EISENSTEIN
1200 US Highway 46
Clifton, New Jersey 07013
FILED: NEW YORK COUNTY CLERK 06/26/2018 04:04 PM INDEX NO. 150083/2014
NYSCEF DOC. NO. 133 RECEIVED NYSCEF: 06/26/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
---------------------------------------------------------------------------X
ROSENFELD & LLP .
ROSENBAUM, SONNENBLICK, Index No.:
R&R PROPERTIES LLC AND COMPUTERIZED
DIAGNOSTIC SCANNING ASSOCIATES, P.C.
Plaintiffs COMPLAINT
-against-
EXCALIBUR GROUP NA, LLC, A SUPERIOR SERVICE
AND REPAIR CO. INC., HOME SYSTEMS ENGINEERING,
INC., PHILIPS HEALTHCARE, PHILIPS MEDICAL
SYSTEMS NORTH AMERICA COMPANY, PHILIPS
ELECTRONICS NORTH AMERICA CORPORATION,
PHILIPS MEDICAL SYSTEMS NORTH AMERICA, INC.,
PHILIPS HEALTHCARE INFORMATICS, INC. and
ESTATE OF MERLE H. EISENSTEIN
Defendants
X
--------------------------------------------------------------------------X
Plaintiffs, ROSENBAUM, ROSENFELD & SONNENBLICK, LLP, R&R
PROPERTIES LLC AND COMPUTERIZED DIAGNOSTIC SCANNING ASSOCIATES, P.C.
by and through their attorneys as and for their complaint herein allege upon information and
belief as follows:
1. This is an action filed by plaintiffs for damages sustained as a result of a flood
that occurred on or about April 18, 2011, subsequent damage due to flooding on or about April
23, 2011 and further damage which occurred subsequent to the floods
2. R&R Third Properties ("R&R") is a New York Limited Liability Company doing
business in New York County, New York.
3. Rosenbaum, Rosenfeld & Sonnenblick, LLP ("RR&S") is a New York limited
liability partnership doing business in New York County, New York.
4. Computerized Diagnostic Scanning Associates, PC ("CDSA") is a New York
professional corporation doing business in New York County, New York.
5. Upon information and belief, the defendant, EXCALIBUR GROUP NA, LLC
FILED: NEW YORK COUNTY CLERK 06/26/2018 04:04 PM INDEX NO. 150083/2014
NYSCEF DOC. NO. 133 RECEIVED NYSCEF: 06/26/2018
GROUP"
(hereinafter "EXCALIBUR GROUP") is a foreign limited liability company organized and
existing pursuant to the laws of the State of New Jersey, having its principal place of business
located in Hopelawn, New Jersey and is authorized to do business in the State of New York.
6. Upon information and belief, defendant A SUPERIOR SERVICE AND REPAIR
SERVICE"
CO. INC., (hereinafter "SUPERIOR SERVICE") is a domestic business corporation organized
and existing pursuant to the laws of the State of New York, having itsprincipal place of business
located in Staten Island, New York.
7. Upon information and belief defendant HOME SYSTEMS ENGINEERING,
SYSTEMS"
INC. (hereinafter referred to as "HOME SYSTEMS") is a corporation organized and existing
pursuant to the laws of the State of New Jersey, having itsprincipal place of business located in
Berkeley Heights, NJ and is authorized to do business in the State of New York.
8. Philips Healthcare is a division of Philips North America Corp., was formerly
known as Philips Medical Systems North America Company and is a Delaware Corporation with
itsprincipal place of business in Andover, Massachusetts.
9. Upon information and belief, Philips Electronics North America Corporation is a
Corporation organized under the laws of Delaware with itsprincipal place of business in New
York.
10. Upon information and belief, Philips Medical Systems North America, Inc. is a
Delaware Corporation with itsprincipal offices in New York.
11. Upon information and belief, Philips Healthcare Informatics, Inc. is a corporation
organized under the laws of the State of Delaware with itsprincipal place of business in
Massachusetts.
12. All Philips companies referenced in paragraphs 8 thought 11, unless identified by
the specific name, will be referred to collectively as "Philips".
13. Upon information and belief, the Estate of Merle H. Eisenstein is a New Jersey
FILED: NEW YORK COUNTY CLERK 06/26/2018 04:04 PM INDEX NO. 150083/2014
NYSCEF DOC. NO. 133 RECEIVED NYSCEF: 06/26/2018
Estate for Merle H. Eisenstein who was an architect with his offices in New Jersey and who was
qualified to perform architectural services in New York under license number 008301.
14. R&R was the owner of a building located at 1421 Third Avenue in New York
City ("1421").
15. RR&S was a tenant at 1421.
16. RR&S was the owner of property and improvements located at 1421.
17. CDSA was a tenant of R&R.
18. CDSA was the owner of property and improvements located at 1421.
19. Prior to 2011 RR&S pursuant to a written an —
MRI-PET/CT
leased, agreement,
from Philips.
Agreement"
20. Prior to 2011, RR&S entered into an agreement (the "Turnkey Agreement") with
Philips for the supervision, design construction and project management of the remodeling of
Philips'
1421 in order that Philips medical equipment including a 1.5 MRI system, a Gemini PET CT
System, an R&F Room, Mamo rooms and an Ultrasound Room could be installed at 1421 (the
"Remodeling"
"Remodeling").
21. Philips as part of the Turnkey Agreement highly recommended that Excalibur bid
on the Remodeling.
22. Excalibur submitted a bid for the Remodeling.
23. Philips approved the Excalibur bid.
24. Philips directed that Excalibur be hired to perform the Remodeling.
25. Excalibur was hired to perform the design, construction and project management
services of the Remodeling.
26. Philips managed the Remodeling.
27. Philips received payment for managing the Remodeling project.
28. Excalibur managed the Remodeling.
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NYSCEF DOC. NO. 133 RECEIVED NYSCEF: 06/26/2018
29. Excalibur, itself and through subcontractors performed the Remodeling.
30. The duties which Excalibur performed included design, construction, supervisory
services, supervision of subcontractors and hiring subcontractors
31. Excalibur retained Merle H. Eisenstein as the architect for the Remodeling.
32. Merle H. Eisenstein was under the supervision and control of Excalibur.
33. Excalibur was under the supervision and control of Philips.
34. Philips provided payments directly to Excalibur on all Turnkey elements.
35. Excalibur and Philips were jointly involved in Remodeling.
36. Excalibur and Philips had control over the Remodeling.
37. Philips directed construction over the Remodeling.
38. Philips supervised construction over the Remodeling.
39. Merle H. Eisenstein has passed away.
40. RR&S entered into a service agreement with Philips Medical Systems North
America Company, a division of Philips Electronics North America Corporation to service,
maintain and repair equipment purchased from Philips including the MRI-PET/CT Scanner (the
"Scanner"
"Scanner").
41. RR&S owns and operates a medical practice.
42. At all times hereinafter relevant, CDSA and RR&S occupied several floors at the
building located at 1421 Third Avenue, New York, New York 10028 (hereinafter referred to as
"Premises"
the "Premises").
43. Superior Service was a sub-contractor to Excalibur.
44. Superior Service was a sub-contractor to Philips.
45. Superior Service was a sub-contractor to Philips and Excalibur.
46. Superior Service performed the plumbing as part of the Remodeling.
47. Merle H. Eisenstein was a subcontractor to Excalibur.
FILED: NEW YORK COUNTY CLERK 06/26/2018 04:04 PM INDEX NO. 150083/2014
NYSCEF DOC. NO. 133 RECEIVED NYSCEF: 06/26/2018
48. Merle H. Eisenstein was a subcontractor to Philips.
49. Merle H. Eisenstein was a subcontractor to Philips and Excalibur.
50. Merle H. Eisenstein was an architect for the Remodeling.
51. Merle H. Eisenstein drafted the plans for the plumbing as part of the Remodeling.
52. Home Systems was a subcontractor to Excalibur.
53. Home Systems was a subcontractor to Philips.
54. Home Systems was a subcontractor to Philips and Excalibur.
55. Home Systems was the engineer for the plumbing a part of the Remodeling.
Flood"
56. On or about April 18, 2011, flooding occurred at 1421 (the "April 18 Flood").
57. As a result of the April 18 Flood, there was property damage to the property of
Plaintiffs.
58. The property damage was caused by the negligence and carelessness of the
defendants during the design, installation, construction, inspection, maintenance, repair and/ or
renovation, of the piping associated with the plumbing system at the Premises.
59. The Scanner was damaged by the April 18, 2011 Flood.
60. Excalibur attempted to repair the damage caused by the April 18, 2011 Flood.
61. Excalibur retained subcontractors and vendors to repair the damages caused by
the April 18, 2011 Flood.
62. Excalibur negligently repaired, supervised and controlled the subcontractors and
vendors who attempted to repair the damage caused by the April 18, 2011 Flood.
63. On or about April 23, 2011, an additional flood occurred (the "April 23, 2011
Flood"
Flood").
64. The damage from the April 23, 2011 Flood was proximately caused by, the
negligence and carelessness of the defendants during the management, design, installation,
construction, inspection, maintenance, repair and/ or renovation, of the piping associated with the
FILED: NEW YORK COUNTY CLERK 06/26/2018 04:04 PM INDEX NO. 150083/2014
NYSCEF DOC. NO. 133 RECEIVED NYSCEF: 06/26/2018
plumbing system at the premises.
65. Excalibur retained subcontractors and vendors to repair the damages caused by
the April 23, 2011 Flood.
66. As a result of the April 18 flood and the April 23, 2011 Flood, the premises and
property including the Scanner were damaged.
67. As a result of the April 18 Flood and the April 23, 2011 Flood, plaintiffs suffered
business loss.
68. As a result of the April 18 Flood and April 23, 2011 Flood, the Scanner was
damaged by sewerage water which contaminated the machine and the electrical system of the
Scanner.
69. Philips has attempted to repair the Scanner.
70. Philips has asserted that itrepaired the Scanner.
71. Philips has asserted the Scanner is operational.
72. The Scanner is not operational.
73. The Scanner does not work.
74. The Scanner, despite the attempted repairs by Philips, is not fitfor the purpose it
was purchased.
75. Philips has been unable to repair the Scanner so that itcan be used on patients.
76. Philips has made the representation to insurance companies and to the other
defendants that the Scanner is functional.
77. Based on Philips representation that the Scanner is functional and can be used in
the medical practice, insurers have refused to pay for replacement of the machine and have
refused to pay for business interruption loss beyond the date when Philips claims the Scanner
was operational for use.
78. Ithas been over two years since the Scanner was damaged and has not been
FILED: NEW YORK COUNTY CLERK 06/26/2018 04:04 PM INDEX NO. 150083/2014
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functional for use.
79. RR&S and CDSA have suffered damage to their reputation as a result of the flood
and their inability to conduct their normal practice.
80. RR&S has suffered damage to its reputation as it does not have a functioning
Scanner.
81. RR&S has suffered loss to its business as it cannot care for patients, has lost
numerous referral and has not been able to expand its business.
82. Although RR&S has not been able to use its Scanner, ithas been charged
maintenance fees for the Scanner.
83. On numerous occasions plaintiffs have attempted to remove the Scanner and
replace the Scanner.
Plaintiffs'
84. Based upon the representations by Philips, to Plaintiffs insurers that the Scanner
is operational, the insurers have objected to removal and replacement of the Scanner.
85. Excalibur repaired the damage resulting from the April 18, 2011 Flood and the
April 23, 2011 Flood.
RR&S'
86. insurers have asserted that the Scanner is not operational as the result of
damage caused by Excalibur during the repairs.
FIRST CAUSE OF ACTION
Negligence of Excalibur
87. Plaintiffs repeat and reallege paragraphs 1 through 86 with the same force and
effect as if fully set forth herein
plaintiffs'
88. The damage to the plaintiffs property arising from the April 18, 2011 Flood and
the April 23, 2011 Flood and remediation and repair were proximately caused by the negligence
of Excalibur, itsagents, servants, workmen and/or employees.
89. As a direct and proximate cause of the aforesaid negligence Excalibur and its
FILED: NEW YORK COUNTY CLERK 06/26/2018 04:04 PM INDEX NO. 150083/2014
NYSCEF DOC. NO. 133 RECEIVED NYSCEF: 06/26/2018
representatives, agents, servants and/ or employees, plaintiffs have been injured in an amount
exceeding two million dollars ($ 2,000,000).
SECOND CAUSE OF ACTION
Negligence of Philips
90. Plaintiffs repeat and reallege paragraphs 1 through 89 with the same force and
effect as if fully set forth herein
plaintiffs'
91. The damage to the plaintiffs property arising from the April 18, 2011 Flood and
the April 23, 2011 Flood and remediation and repair were proximately caused by the negligence
of Philips, its agents, servants, workmen and/or employees.
92. As a direct and proximate cause of the aforesaid negligence Philips and its
representatives, agents, servants and/ or employees, plaintiffs have been injured in an amount
exceeding two million dollars ($ 2,000,000).
THIRD CAUSE OF ACTION
Negligence of Superior
93. Plaintiffs repeat and reallege paragraphs 1 through 92 with the same force and
effect as if fully set forth herein.
plaintiffs'
94. The damage to the plaintiffs property arising from the April 18, 2011 Flood and
the April 23, 2011 Flood and remediation and repair were proximately caused by the negligence
of Superior, its agents, servants, workmen and/or employees.
95. As a direct and proximate cause of the aforesaid negligence Superior and its
representatives, agents, servants and/ or employees, plaintiffs have been injured in an amount
exceeding two million dollars ($ 2,000,000).
FOURTH CAUSE OF ACTION
Negligence of Home Systems
96. Plaintiffs repeat and reallege paragraphs 1 through 95 with the same force and
effect as if fully set forth herein.
FILED: NEW YORK COUNTY CLERK 06/26/2018 04:04 PM INDEX NO. 150083/2014
NYSCEF DOC. NO. 133 RECEIVED NYSCEF: 06/26/2018
plaintiffs'
97. The damage to the plaintiffs property arising from the April 18, 2011 Flood and
the April 23, 2011 Flood and remediation and repair were proximately caused by the negligence
of Home Systems, itsagents, servants, workmen and/or employees.
98. As a direct and proximate cause of the aforesaid negligence Home Systems and
its representatives, agents, servants and/ or employees, plaintiffs have been injured in an amount
exceeding two million dollars ($ 2,000,000).
FIFTH CAUSE OF ACTION
Against the Estate of Merle H. Eisenstein for negligent acts of Merle H. Eisenstein
99. Plaintiffs repeat and reallege paragraphs 1 through 98 with the same force and
effect as if fully set forth herein.
plaintiffs'
100. The damage to the plaintiffs property arising from the April 18, 2011 Flood and
the April 23, 2011 Flood and remediation and repair were proximately caused by the negligence
of Merle H. Eisenstein, his agents, servants, workmen and/or employees.
101. As a direct and proximate cause of the aforesaid negligence of Merle H.
Eisenstein his representatives, agents, servants and/ or employees, plaintiffs have been injured in
an amount exceeding two million dollars ($ 2,000,000).
SIXTH CAUSE OF ACTION
Breach of Contract by Defendants Excalibur, Superior, Home Systems, Philips and
Eisenstein
102. Plaintiffs repeat and reallege paragraphs 1 through 101 with the same force and
effect as if fully set forth herein.
Plaintiffs'
103. For the reasons set forth in First through Fifth Causes of Action
defendants, Excalibur, Philips, Superior, Home Systems and Eisenstein breached their duties to
plaintiffs in that they failed to properly supervise, control, design, install maintain, inspect,
service, repair or handle the subject plumbing system and/or drainage pipes and sanitary pipes
and failed to protect and preserve the property owned by plaintiffs.
FILED: NEW YORK COUNTY CLERK 06/26/2018 04:04 PM INDEX NO. 150083/2014
NYSCEF DOC. NO. 133 RECEIVED NYSCEF: 06/26/2018
104. By reason of the aforesaid breach of contract, the April 18 Flood and the April 23,
Flood and resulting property damage referred to above took place and resulted in substantial
damage to the plaintiffs property and a loss to the Plaintiff in an amount in excess of two million
dollars ($2,000,000).
AS AND FOR A SEVENTH CAUSE OF ACTION
For Breach of Contract by Defendants Philips
105. Plaintiffs repeat and reallege paragraphs 1 through 104 with the same force and
effect as if fully set forth herein.
106. Defendants Philips breached their duties under the Turnkey agreement with
Defendants.
107. Defendants Philips breached their duties under the equipment Service Agreement
with defendants by failing to repair the Scanner.
108. Defendants Philips breached the contracts with Plaintiffs in that they failed to
properly supervise, control, design, install, maintain, inspect service, repair or handle the subject
plumbing system and or drainage pipes and sanitary pipes, failed to protect and preserve the
property owned by plaintiffs being the cause of the damages suffered herein and failed to repair
the Scanner damaged by the April 18, 2011 Flood and the April 23, 2011 Flood.
109. By reason of the aforesaid breach of the Turnkey contract, the April 18, 2011
Flood and the April 23, Flood and resulting property damage referred to above, caused
substantial damage to the plaintiffs property and business loss to the Plaintiff in an amount in
excess of two million dollars ($2,000,000).
Philips'
110. By reason of breach of the Service Agreement, and breach of subsequent
plaintiffs'
agreements to make the Scanner operational, substantial damage occurred to property
and business loss to plaintiffs in an amount in excess of two million dollars ($2,000,000).
FILED: NEW YORK COUNTY CLERK 06/26/2018 04:04 PM INDEX NO. 150083/2014
NYSCEF DOC. NO. 133 RECEIVED NYSCEF: 06/26/2018
WHEREFORE Plaintiffs demand judgment jointly and severally against defendants for
(a) for monetary relief in an amount in excess of two million dollars;
(b) interest;
(c) costs;
(d) attorney's fees;
(e) for such other and further relief as this court shall deem just and proper.
Dated: Kew Gardens, New York
January 6, 2014
LIPS1US-BENHAIM LAW, LLP
Attorneys for Plaintiffs
By: ---
Ira S. Lipsius
80-02 Kew Gardens Road, Suite 1030
Kew Gardens, New York 11415
212-981-8440
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ADAM AMER VS RITA NORIEGA, ET AL.
Jul 09, 2024 |
23STCV10432
Case Number:
23STCV10432
Hearing Date:
July 9, 2024
Dept:
54
Superior Court of California
County of Los Angeles
Adam Amer,
Plaintiff,
Case No.:
23STCV10432
vs.
Tentative Ruling
Rita Noriega, et al.,
Defendants.
Hearing Date: July 9, 2024
Department 54, Judge Maurice A. Leiter
Motion to Determine Good Faith Settlement
Moving Party
: Defendants On Central Realty Inc. dba Coldwell Banker Hallmark Realty, Sevada Mkrdichian, Redfin Corporation, and Alin Glogovicean
Responding Party
: None
T/R
:
DEFENDANTS MOTION TO FOR APPROVAL OF GOOD FAITH SETTLEMENT IS GRANTED.
DEFENDANTS TO NOTICE.
If the parties wish to submit on the tentative, please email the courtroom at¿
SMCdept54@lacourt.org
¿with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.
The Court considers the moving papers.
No opposition was filed.
Any party to an action in which it is alleged that two or more parties are joint tortfeasors or co-obligors on a contract debt shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors or co-obligors upon giving notice in the manner provided in Code of Civil Procedure, section 1005(b).
(CCP § 877.6(a)(1).)
A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasor or co-obligor from any further claims against the settling tortfeasor or co-obligor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault.
(CCP § 877.6 (c).)
The party contesting the settlement bears the burden of proving that the settlement is in bad faith.
(CCP § 877.6 (d).)
Defendants On Central Realty Inc. dba Coldwell Banker Hallmark Realty, Sevada Mkrdichian, Redfin Corporation, and Alin Glogovicean apply for approval of their good faith settlement with Plaintiffs. After extensive negotiations Defendants agreed to settle with Plaintiffs for $30,000. Defendants admit no fault, and state the settlement is proportionate to their potential share of liability. Only one cause of action was brought against them. There is no challenge to the settlement, and the non-settling defendants have defaulted. The Court finds that the settlement is in good faith.
The application is GRANTED.
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Dept:
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Department 40
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v.
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Defendants.
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Hearing Date:
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Trial Date:
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[TENTATIVE] RULING RE:
Plaintiff
Jonathan Neil & Associates, Inc.s Motion to Deem Admissions Admitted and for Monetary Sanctions (Attorney Fees and Costs) Against Defendant Ara Tovmassian in the Amount of $850.00 [Res ID # 0191].
I.
Background
On January 2, 2024, Plaintiff purportedly served Requests for Admission (RFAs), Set One, on Defendant Tovmassian. Responses to RFAs, Set One, were purportedly due on February 6, 2024, 35 days after purported service by mail on January 2, 2024.
Defendant Tovmassian allegedly failed to serve responses to RFAs, Set One, by February 6, 2024.
On March 20, 2024, based on Defendant Tovmassians alleged non-response to RFAs, Set One, Plaintiff filed a motion to deem the truth of RFAs, Set One, admitted as against Defendant Tovmassian. Plaintiffs motion also requests monetary sanctions in the amount of $850 against Defendant Tovmassian. Plaintiff served the motion on Defendant Tovmassian by mail that same day.
Defendant Tovmassian has failed to oppose Plaintiffs motion despite service.
Plaintiffs motion is now before the Court.
II.
Motion to Deem Truth of RFAs Admitted and Request for Sanctions
A.
Motion to Deem Truth of RFAs Admitted
:
GRANTED.
1.
Legal Standard
The discovering party can make a motion to deem as admitted any unanswered requests for admission or any requests answered in a late or unverified response. (See Code Civ. Proc., § 2033.280, subd. (b); Code Civ. Proc., § 2033.240, subd. (a) [RFA responses must be signed by responding party under oath]; see
Appleton v. Superior Court
(1988) 206 Cal.App.3d 632, 636 [unsworn response to RFAs is treated like no response].) These requests are not automatically deemed admitted; the discovery party must make the motion. (See Code Civ. Proc., § 2033.280, subd. (b).)
To establish this ground, a movant must show:
(1) Proper service (see Code Civ. Proc., § 2033.070);
(2) Expiration of the deadline for the initial response 30 days after service or on date agreed to by parties (see Code Civ. Proc., § 2033.250, subds. (a), (b)); and
(3) That (a) the responding party served no response (Code Civ. Proc., § 2033.280, subd. (b)), (b) the propounding party served a late response (Code Civ. Proc., § 2033.280, subd. (b)); or (3) the responding party served an unsworn response (see
Appleton v. Superior Court
,
supra
, 206 Cal.App.3d at p. 636 [unsworn response to RFAs is treated like no response]).
A court must deny a motion to compel initial discovery where the discovery sought is outside the scope of discovery. (See
CBS, Inc. v. Superior Court
(1968) 263 Cal.App.2d 12, 19; see also Code. Civ. Proc., § 2017.010 [scope of discovery].)
2.
Courts Determination
The Court finds in favor of Plaintiff.
The moving papers points and authorities contend that RFAs, Set One, was served on Defendant Tovmassian on January 2, 2024. (Mot., pp. 3 [service], 5 [signature, not sworn].) However, the points and authorities are unsworn and not entitled to evidentiary credence. (
In re Zeth S.
(2003) 31 Cal.4th 396, 413 [the unsworn statements of counsel are not evidence];
South Sutter, LLC v. LJ Sutter Partners, L.P.
(2011) 193 Cal.App.4th 634, 668, fn. 14 [unsworn arguments of counsel in a legal memorandum are not evidence].)
The original Natalia A. Minassian counsel declaration filed on March 20, 2024 did not support service on January 2, 2024, as to RFAs, Set One. However, at the initial hearing on July 2, 2024, the Court pointed out what appeared to
be an inadvertent failure to include substance in that declaration. The Court continued the hearing to July 9, 2024 to allow Plaintiffs counsel to address the error.
On July 3, 2024, Plaintiffs counsel filed a notice of errata and a revised Declaration of Natalia Minassian. It included both averments by counsel as well as attaching the Requests for Admission, along with the Proof of Service, showing service by mail on the Defendant on January 2, 2024. For this reason, the Court finds that service has been shown. Moreover, the evidence supports the fact that the discovery was served on the date alleged in the motion, and thus the Court finds no prejudice from the initial failure to attach the proof of service to the motion.
Second, Defendant has failed to oppose this motion, and did not appear at the initial hearing on July 2, 2024. The evidence in the moving papers sets forth that the Defendant did not respond, and this evidence is thus unrebutted.
Third, the court finds that the 17 RFAs are relevant to the facts involved in this case and are otherwise appropriate, clear and unambiguous.
Given these findings, the Court GRANTS Plaintiffs motion.
B.
Request for Sanctions
:
GRANTED.
1.
Legal Standard
The Court must award sanctions when a partys response is untimely, and the discovering party makes a motion to deem the requests admitted. (Code Civ. Proc., § 2033.280, subd. (c); see
Stover v. Bruntz
(2017) 12 Cal.App.5th 19, 31-32; see e.g.,
Appleton v. Superior Court
,
supra
, 206 Cal.App.3d at pp. 635-636 [sanctions are mandatory].)
The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed. (Cal. Rules of Court, rule 3.1348, subd. (a).)
2.
Courts Determination
The motion to deem admitted has been denied without prejudice, and Defendant has failed to respond or oppose this motion in any way. The requested sanctions of $850 for legal fees of $790 at an hourly rate of $395 and the $60 filing fee for the motion are eminently reasonable. Accordingly, the Court grants sanctions in the amount of $850.
III.
Conclusion
Plaintiff
Jonathan Neil & Associates, Inc.s Motion to Deem Admissions Admitted and for Monetary Sanctions (Attorney Fees and Costs) Against Defendant Ara Tovmassian in the Amount of $850.00 [Res ID # 0191] is GRANTED.
Sanctions in the amount of $850 are ordered to be paid to Hatkoff & Minassian within 30 days of this Order. Failure to do so could result in further sanctions as ordered by the Court.
Ruling
TALAL ALTAMIMI, ET AL. VS LIEF ORGANICS, LLC
Jul 10, 2024 |
23CHCV02417
Case Number:
23CHCV02417
Hearing Date:
July 10, 2024
Dept:
F47 Dept. F47
Date: 7/10/24
Case #23CHCV02417
MOTION TO STRIKE
Motion filed on 5/28/24.
MOVING PARTY: Defendant Lief Organics, LLC
RESPONDING PARTY: Plaintiff Mankind Essentials, Inc.
NOTICE: ok
RELIEF REQUESTED
: An order
striking the Second Amended Complaint filed by Plaintiff Mankind Essentials, Inc. and for sanctions against Plaintiff and Plaintiffs counsel in the amount of $4,042.50 pursuant to CCP 128.5.
RULING
: The motion is denied.
SUMMMARY OF FACTS & PROCEDURAL HISTORY
This action arises out of an agreement entered into by former plaintiffs Talal Altamimi, III (Altamimi) and Plaintiff Mankind Essentials, Inc. (Mankind/Plaintiff) and Defendant Lief Organics, LLC (Defendant) for the manufacture of fertility and dietary products for Mankind.
Based on three orders, Altamimi and Plaintiff paid Defendant deposits totaling $22,787.50.
Plaintiff alleges that Defendant failed to perform under the agreement.
On 8/11/23, Altamimi and Mankind filed this action against Defendant for: (1) Breach of Contract, (2) Fraudulent Deceit, (3) Breach of the Covenant of Good Faith and Fair Dealing, (4) Promissory Fraud and (5) Negligence.
After attempts to meet and confer regarding the issues Defendant had with the complaint were unsuccessful, on 11/20/23, Defendant filed and served a demurrer to the
original complaint.
On 12/28/23, 9 court days before the 1/11/24 hearing date on the demurrer, Plaintiff Mankind Essentials, Inc. (Plaintiff), alone, filed and served a First Amended Complaint which rendered the demurrer moot.
(
See
1/11/24 Minute Order citing CCP 472(a); CCP 1005(b)).
After meet and confer efforts failed to resolve the issues Defendant had with the First Amended Complaint, pursuant to an extension of time to respond to the First Amended Complaint, on 2/9/24, Defendant filed and served a demurrer to the 2
nd
, 4
th
and 5
th
causes of action in the First Amended Complaint.
On 3/7/24, the date a reply was due to be filed and served, Defendant filed and served a Notice of Non-Opposition to the demurrer.
See
CCP 1005(b)
On that same date and without any explanation, Plaintiff filed and served a late opposition to the demurrer.
On 3/8/24, Defendant filed and served a reply to the opposition.
On 3/14/24, the Court sustained the demurrer with 30 days leave to amend making a Second Amended Complaint due on or before 4/15/24.
(
See
3/14/24 Minute Order).
Plaintiff filed and served its Second Amended Complaint on 5/2/24.
Thereafter, Defendant contacted Plaintiff regarding the impropriety of filing the Second Amended Complaint beyond the deadline set by the Court and asked Plaintiffs counsel to withdraw the Second Amended Complaint.
(Bamford Decl. ¶¶6-7, Ex.C).
Plaintiff did not directly respond to the request to withdraw the Second Amended Complaint and has not withdrawn the pleading.
(Bamford Decl. ¶¶6-7).
On 5/28/24, Defendant filed and served the instant motion seeking an order striking the Second Amended Complaint filed by Plaintiff and for sanctions against Plaintiff and Plaintiffs counsel in the amount of $4,042.50 pursuant to CCP 128.5.
At the 5/29/24 Case Management Conference, former plaintiff Talal Altamimi represented that Plaintiff was no longer represented by counsel, although a substitution of attorney had not been filed.
(
See
5/29/24 Minute Order).
On 6/14/24, at the hearing on Defendants Motion to Compel Arbitration, Plaintiffs counsel represented that Plaintiffs counsel had substituted out; however, a substitution of attorney had still not been filed.
(
See
6/14/24 Minute Order).
At the same hearing, defense counsel represented to be in contact with Plaintiff; the parties had entered into a settlement agreement and requested the hearing on the motion be continued.
Id
.
Therefore, the hearing on the motion to compel arbitration was continued to 8/14/24.
Id
.
Despite the foregoing, on 7/2/24, Defendant filed a Notice of Non-Opposition to the instant motion to strike.
Also, on 7/2/24, Plaintiff filed a substitution of attorney indicating that former plaintiff, Talal Altamimi, is substituted in as counsel for Plaintiff.
As noted on the Substitution of Attorney form itself, unless Altamimi is an attorney, Altamimi cannot represent the corporate Plaintiff in court.
ANALYSIS
Defendant seeks to strike the Second Amended Complaint on the ground that it was not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court because it was filed beyond the 30-day deadline set forth in the Courts 3/14/24 order sustaining Defendants demurrer with 30 days leave to amend.
See
CCP 436(b).
Defendant also seeks sanctions against Plaintiff and Plaintiffs (former) counsel on the ground that the filing of the Second Amended Complaint beyond the court ordered deadline constitutes frivolous conduct.
See
CCP 128.5.
While the Second Amended Complaint was filed and served beyond the court-ordered deadline, Defendant has not shown that it has suffered any prejudice as a result of the late filing and service.
Similarly, the Court does not find the late filing and service of the Second Amended Complaint constitutes frivolous conduct which warrants the imposition of sanctions.
CONCLUSION
Based on the foregoing, the motion is denied.
As noted above, unless Talal Altamimi is an attorney, Altamimi cannot represent Plaintiff Mankind Essentials, Inc. in court.
Therefore, Altamimi cannot appear on behalf of Plaintiff at this hearing or any future hearing.
If Altamimi is not an attorney, Plaintiff
must obtain counsel before the next scheduled court hearing or the Court will set an Order to Show Cause as to why the action should not be dismissed.
Ruling
Edwards, et al. vs. General Motors LLC
Jul 10, 2024 |
22CV-0200334
EDWARDS, ET AL. VS. GENERAL MOTORS LLC
Case Number: 22CV-0200334
Tentative Ruling on Motion for Attorney Fees and Costs: Plaintiffs David and Stephanie
Edwards filed this action alleging violation of the Song-Beverly Consumer Warranty Act (“Act”)
against General Motors, LLC (“GM”) and Taylor Motors, Inc. (“TMI”) on August 4, 2022.
Following extensive motion practice, primarily concerning discovery issues, the parties settled the
matter on May 7, 2024. Pursuant to the Act, and the terms of the settlement agreement, Plaintiffs
are the prevailing party entitled to recover reasonable attorney fees and costs. Plaintiffs seek a total
of $319,464.80 in attorney fees and costs. This request consists of $149,773.50 in attorney fees
for 269.3 hours of work litigating this matter from August 5, 2022 to the present, a 2.0 multiplier,
and $19,917.80 in costs.
Objections to Evidence: Plaintiffs have raised 10 Objections to portions of the Declaration of
Cameron Major on the grounds that certain statements and supporting exhibits are improper
argument, lack foundation, are conclusory, and lack personal knowledge. The Objections are
OVERRULED.
Song-Beverly: The Song-Beverly Act contains a cost-shifting provision that specifically allows
prevailing buyers to recover their costs, including attorney’s fees. Civ. C. § 1794(d). The
attorney’s fee award is limited to the amount the court determines was reasonably incurred by the
buyer in commencing and prosecuting the action, based on actual time expended. The prevailing
buyer has the burden of proving the fees were both reasonably necessary to conduct the litigation
and reasonable in amount. Civil Code § 1794(d); Robertson v. Fleetwood Travel Trailers of
California, Inc., (2006) 144 Cal. App. 4th 785. The lodestar method applies to determining
attorney’s fees under the Song-Beverly Act. Id. at 817. When determining a reasonable attorney's
fee award, using the lodestar method, the judge begins by deciding the reasonable hours the
prevailing party's attorney spent on the case and multiplies that number by the prevailing hourly
rate for private attorneys in the community who conduct non-contingent litigation of the same
type. Doppes v Bentley Motors, Inc. (2009) 174 CA4th 967, 998. Plaintiff is entitled to be
compensated at rates that reflect the reasonable market value of their services in the community.
Serrano v. Unruh (1982) 32 Cal.3d 621, 643. In determining the amount of attorney's fees to
which a litigant is entitled, an experienced trial judge is the best judge of the value of professional
services rendered in his or her court. Granberry v. Islay Investments (1995) 9 Cal. 4th 738, 752.
Reasonableness of Hours: The court has discretion to decide which of the hours expended by the
attorneys were reasonably spent on litigation. Hammond v. Agran (2002) 99 Cal.App.4th 115,
133. The predicate of any attorney fee award is the necessity and usefulness of the conduct for
which compensation is sought. Thayer v. Wells Fargo Bank, N.A. (2001) 92 Cal.App.4th 819,
846. The court’s focus in evaluating the fee request should be to provide a fee award reasonably
designed to completely compensate attorneys for the services provided. The starting point for this
determination is the attorney’s time records. Absent clear indication they are erroneous, verified
time records are entitled to credence. Horsford v. Board of Trustees of Calif. State Univ. (2005)
132 Cal.App.4th 359, 395-397.
Plaintiffs seek a total of $149,773.50 in attorney’s fees associated with 269.3 hours of work
performed by four attorneys and one unknown individual. Plaintiffs have submitted detailed time
records to support their request. Defendant challenges numerous specific entries. (Opposition pp.
8 – 11.) The Court has reviewed the billing records in detail, as well as Defendant’s objections.
Counsel billed a total of 269.3 hours to this litigation, which commenced August 4, 2022. The
parties engaged in extensive law and motion practice over 22 months of litigation. The matter
settled on the eve of trial for the maximum possible recovery under the law. The Court finds the
time spent was reasonably expended, with the following exceptions: 1) time billed by Erika
Kavicky – no information regarding this attorney’s qualifications and experience has been
provided, a total of 0.6 hours will be stricken for Ms. Kavicky’s time, and 2) time billed by Angela
Mason – no information regarding this individual’s position, qualifications or experience has been
provided, a total of 1.7 hours will be stricken for Ms. Mason’s time. The billing records Plaintiffs
provided show the following hours were reasonably expended: 133.9 by Deborah Horowitz, 115.4
by Joseph Kaufman and Associates, and 18.4 for the Kaufman and Kavicky firm. The total hours
reasonably expended on this matter are therefore 267.7.
Reasonableness of Rates: A reasonable hourly rate is determined by the prevailing rate charged
to attorneys of similar skill and experience in the relevant community. See PLCM Group, Inc. v.
Drexler (2000) 22 Cal.4th 1084, 1095. However, the court may also consider the attorney’s skill
and expertise, the nature of the work performed, the relevant area of expertise and the attorney’s
customary billing rates. Flannery v. California Highway Patrol (1998) 61 Cal.App.4th 629, 632.
A plaintiff seeking to recover hourly rates for out-of-town counsel that are higher than the local
rates must show (1) a good faith effort to find local counsel, and (2) demonstrate that hiring local
counsel was impracticable. Nichols v. City of Taft (2007) 155 Cal.App.4th 1233, 1243.
The Court is the best judge of the value of professional services provided and may use its discretion
to apply rates in line with the market rates for the services provided. Ketchum v. Moses (2001) 24
Cal.4th 1122, 1132. This Court has extensive experience in presiding over Song Beverly actions
including motions for attorney’s fees, costs and expenses under Song Beverly. As such this Court
is aware of the reasonable hourly rates charged in actions of this nature. It is also aware of the
prior hourly rates found to be reasonable. Based on the Court’s extensive knowledge and
experience, it finds that reasonable hourly rates are $400 per hour for the partners, and $350 per
hour for the associate (Isaac Agyeman - 10 years of experience). The Court notes that Plaintiff
Anthony Edwards has submitted a Declaration indicating that he made a good faith effort to find
local counsel but was unable to do so. The Court has reviewed this voluminous case file, which
contains numerous discovery motions supported by attorney declarations regarding fees. It
appears that Plaintiff has not previously submitted a declaration regarding inability to find local
counsel in support of hourly rates above reasonable local rates. The Court has previously,
consistently, found a rate of $400 per hour a reasonable rate for partners in this matter. In the
interest of consistency within this case, and fairness to Defendants who have previously been
ordered to pay sanctions at the rate of $400 per hour, the Court will again find that $400 per hour
is a reasonable rate for partners in this matter. The Court finds that $350 per hour is a reasonable
rate for the associate in this matter. The Court notes that the billing records submitted do not break
out total hours billed by each individual partner and associate. Considering the large number of
billing entries, it is impractical for the Court to recalculate the correct billing at the approved rates.
Plaintiffs are ordered to submit recalculated totals using the Court’s approved rates.
Multiplier: Plaintiffs seek a 2.0 multiplier based on the results obtained and the contingent risks.
Adjustment factors that may be considered in awarding a multiplier include: 1) the novelty and
difficulty of the questions involved, 2) the skill displayed in presenting them, 3) the extent to which
the litigation precluded other employment, 4) the contingent nature of the fee award. Komarova
v. National Credit Acceptance, Inc. (2009) 175 Cal.App.4th 324, 348. Plaintiff has not
demonstrated a multiplier is warranted in this case. The issues involved in this litigation were
neither novel nor difficult. Counsel have demonstrated they are specialists, who are experienced
and skilled in this area of law, but this case involved routine issues under Song-Beverly. This
litigation precluded other employment to the extent any litigation would. The matter was taken on
a contingent fee basis as is all Song-Beverly litigation. The Court acknowledges Plaintiffs’
Counsel obtained the maximum award for the client. However, simply obtaining a positive result
in a factually and legally standard Song-Beverly case does not warrant a multiplier.
Costs and Expenses: The Song-Beverly Act provides that the court will award a successful
plaintiff a sum equal to the aggregate amount of costs and expenses, which have been determined
to have been reasonably incurred. Civil Code § 1794(d). Plaintiffs have requested an award of
costs and expenses in the amount of $19,917.80. However, the declarations submitted in support
of the moving papers only include itemized costs for a total of $16,247.81. The discrepancy is
addressed only in the Reply materials. (Plaintiffs submitted a Supplemental Declaration of Isaac
Agyeman which attaches a record of costs of $3,730 as Exhibit 6.) GM did not have the
opportunity to review and oppose those costs, as they were raised for the first time in the Reply
brief. Therefore, they will not be awarded. The remaining amount of $16,247.81 appears
reasonably incurred with the following exceptions, which will be stricken: 1) $602.26 for
Plaintiff’s mistakenly filing the Complaint twice, 2) $304.99 for Plaintiff’s “Re-Filing” Motion for
Leave to Amend, as it is a duplicate entry without explanation, 3) $180.16 and $592.73 for
Plaintiff’s Notice of Association of Counsel and Substitution of Attorney, respectively, as they are
business expenses of Counsel, not proper litigation expenses.
As for costs related to Taylor Motors, the Court notes the parties’ settlement agreement is between
and among David Edwards and Stephanie Edwards (“Plaintiffs”) and General Motors LLC and
Taylor Motors, Inc (“Defendants”). The agreement provides “Defendants shall pay Plaintiffs
attorney’s fees, costs, and expenses in an amount determined by the Court, by way of a single
noticed motion…” (Decl. Kaufman Ex. 1.) The Court finds the parties’ agreement contemplates
that Plaintiffs’ costs related to Taylor Motors would be included in the instant motion for fees and
costs. The total costs and expenses reasonably incurred are $14,567.67.
The Motion for Fees and Costs is GRANTED in part, as detailed above. Plaintiff is ordered to
prepare a proposed order consistent with the Court’s ruling. Plaintiff is also ordered to file and
serve a declaration which includes the recalculated totals for attorney fees using the Court-
approved rates detailed above. This matter is set for Monday August 12, 2024, at 8:30 a.m. in
Department 64 for review regarding the supplemental declaration and proposed order. If a
satisfactory supplemental declaration and proposed order are submitted at least five court days
prior to the continued date, the hearing may be vacated.
P.J. MCAULIFFE FAMILY PARTNERSHIP, L.P. VS. THE
TESTATE OR INTESTATE SUCCESSORS OF NORA
Ruling
BILLY SNOW VS DLK CONTRACTING, INC., ET AL.
Jul 09, 2024 |
6/18/2022 |
23SMCV00120
Case Number:
23SMCV00120
Hearing Date:
July 9, 2024
Dept:
I Code of Civil Procedure requires that a party suing a licensed architect for malpractice must obtain a certificate of merit (with certain exceptions not relevant here) before bringing suit.
The moving party, Fenske, contends that cross-complainant does not have such a certificate and brought a motion to dismiss on that basis.
Cross-complainant has filed no opposition, presumably because there is no such certificate.
Accordingly, the motion is GRANTED.
The cross-complaint against Fenske is DISMISSED.
Fenske to recover his costs.
Because Fenske is no longer a party, any motion involving him is MOOT and the stay, having served its purpose, is lifted.
Fenske is to prepare the written order of dismissal and lodge it with the court within 20 days.
Ruling
Miguel Aguilar vs General Motors, LLC.
Jul 10, 2024 |
23CV-03969
23CV-03969 Michael Aguilar v. General Motors, LLC
Demurrer by General Motors, LLC to Plaintiff’s First Amended Complaint’s Fifth Cause of Action
for Fraudulent Inducement (Concealment) because (1) It is barred by the statute of limitations,
(2) Fails to state facts sufficient to establish a cause of action, and (3) Fails to allege a
transactional relationship giving rise to a duty to disclose.
The Demurrer by General Motors, LLC to Plaintiff’s First Amended Complaint’s Fifth
Cause of Action for Fraudulent Inducement (Concealment) because (1) It is barred by the
statute of limitations, (2) Fails to state facts sufficient to establish a cause of action, and
(3) Fails to allege a transactional relationship giving rise to a duty to disclose is
SUSTAINED ON ALL GROUNDS WITH LEAVE TO AMEND to provide Plaintiff with an
opportunity to (1) Plead around the statute of limitations, (2) Plead fraudulent inducement
with specificity, and (3) Establish a relationship giving rise to a duty to disclose. The
Second Amended Complaint will be filed by November 29, 2024, to give Plaintiff sufficient
time to conduct discovery to obtain the facts necessary for Plaintiff to amend.
Motion by Defendant General Motors, LLC too Strike Punitive Damages Claim
The Motion by Defendant General Motors, LLC too Strike Punitive Damages Claim is
SUSTAINED WITH LEAVE TO AMEND to state a cause of action that supports a claim for
punitive damages and to allege the facts necessary to establish a punitive damages
claim. The Second Amended Complaint will be filed by November 29, 2024, to give
Plaintiff sufficient time to conduct discovery to obtain the facts necessary for Plaintiff to
amend.
Ruling
PHILLIP PHARELL MCGOWAN, ET AL. VS FAME GARDENS, LP
Jul 15, 2024 |
23STCV24498
Case Number:
23STCV24498
Hearing Date:
July 15, 2024
Dept:
20
Tentative Ruling
Judge Kevin C. Brazile
Department 20
Hearing Date:
July 15, 2024
Case Name:
McGowan, et al. v. Fame Gardens LP
Case No.:
23STCV24498
Matter:
OSC re: Default Judgment
Ruling:
The Default Judgment Application is denied without prejudice.
Plaintiffs to give notice.
This is a habitability matter. Plaintiffs
Phillip Pharell Mcgowan, Devon Monique Martinez, Joseph Manuel Eddins, and Cereniti Claire Martinez Mcgowan
seek a default judgment against Defendant Fame Gardens LP.
While Plaintiffs request $540,000 in damages, the Complaint fails to make any
specific
request for damages against Defendant.
This is problematic as [t]he relief granted to the plaintiff, if there is no answer, cannot exceed that demanded in the complaint . . . . (Code Civ. Proc. § 580.) Further, phrases such as in an amount not less than do not give notice for the purposes of Code Civ. Proc. § 580. (
Electronic Funds Solutions, LLC v. Murphy
(2005) 134 Cal.App.4
th
1161, 1173-1174.) Code Civ. Proc. § 580 applies even when a defendant has defaulted after having filed an answer and having participated in discovery. (See
Greenup v. Rodman
(1986) 42 Cal.3d 822, 828;
Elec. Funds Sols., LLC v. Murphy
(2005) 134 Cal.App.4th 1161, 1175.) That a statement of damages was served is irrelevant as this is not a personal injury or wrongful death action.
Thus, Plaintiffs can either accept the jurisdictional minimum of $25,001
in damages or else amend the Complaints allegations as to damages, which would be a material change opening Defendants default. (
Cole v. Roebling Const. Co.
(1909) 156 Cal. 443;
Leo v. Dunlap
(1968) 260 Cal.App.2d 24, 27-28.)
Accordingly
, the Default Judgment Application is denied without prejudice.
Plaintiffs to give notice.
Preview
FILED: FILED : NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 06/26/2018 04:04 PM INDEX INDEX NO. NO. 150083/2014 150083/2014 01/06/2014| NYSCEF NYSCEF DOC. DOC. NO. NO. 133 1 RECEIVED RECEIVED NYSCEF: NYSCEF: 06/26/2018 01/06/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK PÖŠE ÃÜÑf, 65ËÑËËÏ 4 ŠÖÑÑEÑ Ï LLP Date Filed: R&R PROPERTIES LLC AND COMPUTERIZED DIAGNOSTIC SCANNING ASSOCIATES, P.C. Index No. / Plaintiff, Plaintiffdesignates NEW YORK County as the place of trial vs. EXCALIBUR GROUP NA, LLC, A SUPERIOR SERVICE AND REPAIR CO. INC., HOME SYSTEMS | SUMMONS ENGINEERING, INC., PHILIPS HEALTHCARE, PHILIPS MEDICAL SYSTEMS NORTH AMERICA COMPANY, PHILIPS ELECTRONICS NORTH AMERICA CORPORATION, PHILIPS MEDICAL SYSTEMS NORTH AMERICA, INC., PHILIPS HEALTHCARE INFORMATICS, INC. and ESTATE OF MERLE H. EISENSTEIN Defendants __________________________________________Defendan_ts__________________j 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 thecomplaint is notserved with thissummons, to serve a noticeof appearance, on the plaintiff's attorneys within twenty (20) days afterthe service of thissummons, exclusive of the date of service (or withinthirty(30) days after service iscomplete if this summons isnot personally delivered to you within the State ofNew York);and in case of your failure to appear or answer, judgment will be taken against you by default for the reliefdemanded in the complaint. NOTICE OF COMMENCEMENT OF ACTION SUBJECT TO MANDATORY ELECTRONIC RUNG PLEASE TAKE NOTICE thatthe matter captioned above, which has been commenced by of filing the accompanying documents with the CountyClerk,is subject to mandatoryelectronic pursuant filing to Section202.S-bbof theUniform Rulesfor the TrialCourts.Thisnoticeis being served by Subdivision as required (b) 13) of that Section. The New York StateCourts Electronic FilingSystem ("NYSCEF") is designedfortheelectronic of filing documents withthe County Clerk and for the electronic and the court serviceof thosedocuments,courtdocuments, and courtnoticesupon counsel and parties. self-represented Counsel and/orpartieswho do not the notify courtof a claimedexemption (see below) as requiredby Section202.S-bb(e)must Immediatelyrecordtheirrepresentation within matter the e-flied on the Consent page In NYSCEF. Failure to do so mayresultIn an Inability to receive electronic noticeof document filings. Exemptions from mandatory are e-filing limitedto:(1) attorneyswho in certify good faiththatthey lack the computer equipment and (along withallemployees) therequisiteknowledge tocomply; and (2) self-represented partieswho choose not to in e-filing. participate Foradditionalinformation about electronic filing, includingaccess tosection202.5-bb,consultthe NYSCEF website or contact at www.nycourts.qov/efile the NYSCEF Resource Center at 646-386-3033or efilePcourts.state.ny.us..us. Plaintiffs' The basis of Venue is: place of business Which is: R&R Third Properties, LLC 1421 Third Avenue New York, New York 10028 Rosenbaum, Rosenfeld & Sonnenblick, LLP 1421 Third Avenue New York, New York 10028 Computerized Diagnostic Scanning Associates 1421 Third Avenue New York, New York 1002S FILED: NEW YORK COUNTY CLERK 06/26/2018 04:04 PM INDEX NO. 150083/2014 NYSCEF DOC. NO. 133 RECEIVED NYSCEF: 06/26/2018 Dated: Kew Gardens, New York January 6, 2014 LIPSIUS-BENHAIM LAW LLP Attorneys forplaintiffs By: Ira S. Lipsius, Esq. 80-02 Kew Gardens Road, Suite 1030 Kew Gardens, New York 11415 212-981-8440 Defendants' address: EXCALIBUR GROUP NA LLC. A SUPERIOR SERVICE AND 175 Quincy Court REPAIR CO. INC. Hopelawn, New Jersey 0886 393 Elvin Street Staten Island, New York 10314 HOME SYSTEMS ENGINEERING, INC. PHILIPS MEDICAL SYSTEMS 229 Emerson Lane NORTH AMERICA COMPANY, Berkeley Heights, New Jersey 07922 3000 Minuteman Road Andover, MA 01810 PHILIPS HEALTHCARE, PHILIPS MEDICAL SYSTEMS 3000 Minuteman Road NORTH AMERICA, INC., 42"d Andover, MA 01810 100 East 42 Street New York, NY 10017 PHILIPS ELECTRONICS PHILIPS HEALTHCARE NORTH AMERICA CORPORATION, INFORMATICS, INC. 3000 Minuteman Road 3000 Minuteman Road Andover, MA 01810 Andover, MA 01810 And And Corporate Service Company Corporate Service Company 80 State Street 80 State Street Albany, NY 12202-2543 Albany, NY 12202-2543 ESTATE OF MERLE H. EISENSTEIN 1200 US Highway 46 Clifton, New Jersey 07013 FILED: NEW YORK COUNTY CLERK 06/26/2018 04:04 PM INDEX NO. 150083/2014 NYSCEF DOC. NO. 133 RECEIVED NYSCEF: 06/26/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ---------------------------------------------------------------------------X ROSENFELD & LLP . ROSENBAUM, SONNENBLICK, Index No.: R&R PROPERTIES LLC AND COMPUTERIZED DIAGNOSTIC SCANNING ASSOCIATES, P.C. Plaintiffs COMPLAINT -against- EXCALIBUR GROUP NA, LLC, A SUPERIOR SERVICE AND REPAIR CO. INC., HOME SYSTEMS ENGINEERING, INC., PHILIPS HEALTHCARE, PHILIPS MEDICAL SYSTEMS NORTH AMERICA COMPANY, PHILIPS ELECTRONICS NORTH AMERICA CORPORATION, PHILIPS MEDICAL SYSTEMS NORTH AMERICA, INC., PHILIPS HEALTHCARE INFORMATICS, INC. and ESTATE OF MERLE H. EISENSTEIN Defendants X --------------------------------------------------------------------------X Plaintiffs, ROSENBAUM, ROSENFELD & SONNENBLICK, LLP, R&R PROPERTIES LLC AND COMPUTERIZED DIAGNOSTIC SCANNING ASSOCIATES, P.C. by and through their attorneys as and for their complaint herein allege upon information and belief as follows: 1. This is an action filed by plaintiffs for damages sustained as a result of a flood that occurred on or about April 18, 2011, subsequent damage due to flooding on or about April 23, 2011 and further damage which occurred subsequent to the floods 2. R&R Third Properties ("R&R") is a New York Limited Liability Company doing business in New York County, New York. 3. Rosenbaum, Rosenfeld & Sonnenblick, LLP ("RR&S") is a New York limited liability partnership doing business in New York County, New York. 4. Computerized Diagnostic Scanning Associates, PC ("CDSA") is a New York professional corporation doing business in New York County, New York. 5. Upon information and belief, the defendant, EXCALIBUR GROUP NA, LLC FILED: NEW YORK COUNTY CLERK 06/26/2018 04:04 PM INDEX NO. 150083/2014 NYSCEF DOC. NO. 133 RECEIVED NYSCEF: 06/26/2018 GROUP" (hereinafter "EXCALIBUR GROUP") is a foreign limited liability company organized and existing pursuant to the laws of the State of New Jersey, having its principal place of business located in Hopelawn, New Jersey and is authorized to do business in the State of New York. 6. Upon information and belief, defendant A SUPERIOR SERVICE AND REPAIR SERVICE" CO. INC., (hereinafter "SUPERIOR SERVICE") is a domestic business corporation organized and existing pursuant to the laws of the State of New York, having itsprincipal place of business located in Staten Island, New York. 7. Upon information and belief defendant HOME SYSTEMS ENGINEERING, SYSTEMS" INC. (hereinafter referred to as "HOME SYSTEMS") is a corporation organized and existing pursuant to the laws of the State of New Jersey, having itsprincipal place of business located in Berkeley Heights, NJ and is authorized to do business in the State of New York. 8. Philips Healthcare is a division of Philips North America Corp., was formerly known as Philips Medical Systems North America Company and is a Delaware Corporation with itsprincipal place of business in Andover, Massachusetts. 9. Upon information and belief, Philips Electronics North America Corporation is a Corporation organized under the laws of Delaware with itsprincipal place of business in New York. 10. Upon information and belief, Philips Medical Systems North America, Inc. is a Delaware Corporation with itsprincipal offices in New York. 11. Upon information and belief, Philips Healthcare Informatics, Inc. is a corporation organized under the laws of the State of Delaware with itsprincipal place of business in Massachusetts. 12. All Philips companies referenced in paragraphs 8 thought 11, unless identified by the specific name, will be referred to collectively as "Philips". 13. Upon information and belief, the Estate of Merle H. Eisenstein is a New Jersey FILED: NEW YORK COUNTY CLERK 06/26/2018 04:04 PM INDEX NO. 150083/2014 NYSCEF DOC. NO. 133 RECEIVED NYSCEF: 06/26/2018 Estate for Merle H. Eisenstein who was an architect with his offices in New Jersey and who was qualified to perform architectural services in New York under license number 008301. 14. R&R was the owner of a building located at 1421 Third Avenue in New York City ("1421"). 15. RR&S was a tenant at 1421. 16. RR&S was the owner of property and improvements located at 1421. 17. CDSA was a tenant of R&R. 18. CDSA was the owner of property and improvements located at 1421. 19. Prior to 2011 RR&S pursuant to a written an — MRI-PET/CT leased, agreement, from Philips. Agreement" 20. Prior to 2011, RR&S entered into an agreement (the "Turnkey Agreement") with Philips for the supervision, design construction and project management of the remodeling of Philips' 1421 in order that Philips medical equipment including a 1.5 MRI system, a Gemini PET CT System, an R&F Room, Mamo rooms and an Ultrasound Room could be installed at 1421 (the "Remodeling" "Remodeling"). 21. Philips as part of the Turnkey Agreement highly recommended that Excalibur bid on the Remodeling. 22. Excalibur submitted a bid for the Remodeling. 23. Philips approved the Excalibur bid. 24. Philips directed that Excalibur be hired to perform the Remodeling. 25. Excalibur was hired to perform the design, construction and project management services of the Remodeling. 26. Philips managed the Remodeling. 27. Philips received payment for managing the Remodeling project. 28. Excalibur managed the Remodeling. FILED: NEW YORK COUNTY CLERK 06/26/2018 04:04 PM INDEX NO. 150083/2014 NYSCEF DOC. NO. 133 RECEIVED NYSCEF: 06/26/2018 29. Excalibur, itself and through subcontractors performed the Remodeling. 30. The duties which Excalibur performed included design, construction, supervisory services, supervision of subcontractors and hiring subcontractors 31. Excalibur retained Merle H. Eisenstein as the architect for the Remodeling. 32. Merle H. Eisenstein was under the supervision and control of Excalibur. 33. Excalibur was under the supervision and control of Philips. 34. Philips provided payments directly to Excalibur on all Turnkey elements. 35. Excalibur and Philips were jointly involved in Remodeling. 36. Excalibur and Philips had control over the Remodeling. 37. Philips directed construction over the Remodeling. 38. Philips supervised construction over the Remodeling. 39. Merle H. Eisenstein has passed away. 40. RR&S entered into a service agreement with Philips Medical Systems North America Company, a division of Philips Electronics North America Corporation to service, maintain and repair equipment purchased from Philips including the MRI-PET/CT Scanner (the "Scanner" "Scanner"). 41. RR&S owns and operates a medical practice. 42. At all times hereinafter relevant, CDSA and RR&S occupied several floors at the building located at 1421 Third Avenue, New York, New York 10028 (hereinafter referred to as "Premises" the "Premises"). 43. Superior Service was a sub-contractor to Excalibur. 44. Superior Service was a sub-contractor to Philips. 45. Superior Service was a sub-contractor to Philips and Excalibur. 46. Superior Service performed the plumbing as part of the Remodeling. 47. Merle H. Eisenstein was a subcontractor to Excalibur. FILED: NEW YORK COUNTY CLERK 06/26/2018 04:04 PM INDEX NO. 150083/2014 NYSCEF DOC. NO. 133 RECEIVED NYSCEF: 06/26/2018 48. Merle H. Eisenstein was a subcontractor to Philips. 49. Merle H. Eisenstein was a subcontractor to Philips and Excalibur. 50. Merle H. Eisenstein was an architect for the Remodeling. 51. Merle H. Eisenstein drafted the plans for the plumbing as part of the Remodeling. 52. Home Systems was a subcontractor to Excalibur. 53. Home Systems was a subcontractor to Philips. 54. Home Systems was a subcontractor to Philips and Excalibur. 55. Home Systems was the engineer for the plumbing a part of the Remodeling. Flood" 56. On or about April 18, 2011, flooding occurred at 1421 (the "April 18 Flood"). 57. As a result of the April 18 Flood, there was property damage to the property of Plaintiffs. 58. The property damage was caused by the negligence and carelessness of the defendants during the design, installation, construction, inspection, maintenance, repair and/ or renovation, of the piping associated with the plumbing system at the Premises. 59. The Scanner was damaged by the April 18, 2011 Flood. 60. Excalibur attempted to repair the damage caused by the April 18, 2011 Flood. 61. Excalibur retained subcontractors and vendors to repair the damages caused by the April 18, 2011 Flood. 62. Excalibur negligently repaired, supervised and controlled the subcontractors and vendors who attempted to repair the damage caused by the April 18, 2011 Flood. 63. On or about April 23, 2011, an additional flood occurred (the "April 23, 2011 Flood" Flood"). 64. The damage from the April 23, 2011 Flood was proximately caused by, the negligence and carelessness of the defendants during the management, design, installation, construction, inspection, maintenance, repair and/ or renovation, of the piping associated with the FILED: NEW YORK COUNTY CLERK 06/26/2018 04:04 PM INDEX NO. 150083/2014 NYSCEF DOC. NO. 133 RECEIVED NYSCEF: 06/26/2018 plumbing system at the premises. 65. Excalibur retained subcontractors and vendors to repair the damages caused by the April 23, 2011 Flood. 66. As a result of the April 18 flood and the April 23, 2011 Flood, the premises and property including the Scanner were damaged. 67. As a result of the April 18 Flood and the April 23, 2011 Flood, plaintiffs suffered business loss. 68. As a result of the April 18 Flood and April 23, 2011 Flood, the Scanner was damaged by sewerage water which contaminated the machine and the electrical system of the Scanner. 69. Philips has attempted to repair the Scanner. 70. Philips has asserted that itrepaired the Scanner. 71. Philips has asserted the Scanner is operational. 72. The Scanner is not operational. 73. The Scanner does not work. 74. The Scanner, despite the attempted repairs by Philips, is not fitfor the purpose it was purchased. 75. Philips has been unable to repair the Scanner so that itcan be used on patients. 76. Philips has made the representation to insurance companies and to the other defendants that the Scanner is functional. 77. Based on Philips representation that the Scanner is functional and can be used in the medical practice, insurers have refused to pay for replacement of the machine and have refused to pay for business interruption loss beyond the date when Philips claims the Scanner was operational for use. 78. Ithas been over two years since the Scanner was damaged and has not been FILED: NEW YORK COUNTY CLERK 06/26/2018 04:04 PM INDEX NO. 150083/2014 NYSCEF DOC. NO. 133 RECEIVED NYSCEF: 06/26/2018 functional for use. 79. RR&S and CDSA have suffered damage to their reputation as a result of the flood and their inability to conduct their normal practice. 80. RR&S has suffered damage to its reputation as it does not have a functioning Scanner. 81. RR&S has suffered loss to its business as it cannot care for patients, has lost numerous referral and has not been able to expand its business. 82. Although RR&S has not been able to use its Scanner, ithas been charged maintenance fees for the Scanner. 83. On numerous occasions plaintiffs have attempted to remove the Scanner and replace the Scanner. Plaintiffs' 84. Based upon the representations by Philips, to Plaintiffs insurers that the Scanner is operational, the insurers have objected to removal and replacement of the Scanner. 85. Excalibur repaired the damage resulting from the April 18, 2011 Flood and the April 23, 2011 Flood. RR&S' 86. insurers have asserted that the Scanner is not operational as the result of damage caused by Excalibur during the repairs. FIRST CAUSE OF ACTION Negligence of Excalibur 87. Plaintiffs repeat and reallege paragraphs 1 through 86 with the same force and effect as if fully set forth herein plaintiffs' 88. The damage to the plaintiffs property arising from the April 18, 2011 Flood and the April 23, 2011 Flood and remediation and repair were proximately caused by the negligence of Excalibur, itsagents, servants, workmen and/or employees. 89. As a direct and proximate cause of the aforesaid negligence Excalibur and its FILED: NEW YORK COUNTY CLERK 06/26/2018 04:04 PM INDEX NO. 150083/2014 NYSCEF DOC. NO. 133 RECEIVED NYSCEF: 06/26/2018 representatives, agents, servants and/ or employees, plaintiffs have been injured in an amount exceeding two million dollars ($ 2,000,000). SECOND CAUSE OF ACTION Negligence of Philips 90. Plaintiffs repeat and reallege paragraphs 1 through 89 with the same force and effect as if fully set forth herein plaintiffs' 91. The damage to the plaintiffs property arising from the April 18, 2011 Flood and the April 23, 2011 Flood and remediation and repair were proximately caused by the negligence of Philips, its agents, servants, workmen and/or employees. 92. As a direct and proximate cause of the aforesaid negligence Philips and its representatives, agents, servants and/ or employees, plaintiffs have been injured in an amount exceeding two million dollars ($ 2,000,000). THIRD CAUSE OF ACTION Negligence of Superior 93. Plaintiffs repeat and reallege paragraphs 1 through 92 with the same force and effect as if fully set forth herein. plaintiffs' 94. The damage to the plaintiffs property arising from the April 18, 2011 Flood and the April 23, 2011 Flood and remediation and repair were proximately caused by the negligence of Superior, its agents, servants, workmen and/or employees. 95. As a direct and proximate cause of the aforesaid negligence Superior and its representatives, agents, servants and/ or employees, plaintiffs have been injured in an amount exceeding two million dollars ($ 2,000,000). FOURTH CAUSE OF ACTION Negligence of Home Systems 96. Plaintiffs repeat and reallege paragraphs 1 through 95 with the same force and effect as if fully set forth herein. FILED: NEW YORK COUNTY CLERK 06/26/2018 04:04 PM INDEX NO. 150083/2014 NYSCEF DOC. NO. 133 RECEIVED NYSCEF: 06/26/2018 plaintiffs' 97. The damage to the plaintiffs property arising from the April 18, 2011 Flood and the April 23, 2011 Flood and remediation and repair were proximately caused by the negligence of Home Systems, itsagents, servants, workmen and/or employees. 98. As a direct and proximate cause of the aforesaid negligence Home Systems and its representatives, agents, servants and/ or employees, plaintiffs have been injured in an amount exceeding two million dollars ($ 2,000,000). FIFTH CAUSE OF ACTION Against the Estate of Merle H. Eisenstein for negligent acts of Merle H. Eisenstein 99. Plaintiffs repeat and reallege paragraphs 1 through 98 with the same force and effect as if fully set forth herein. plaintiffs' 100. The damage to the plaintiffs property arising from the April 18, 2011 Flood and the April 23, 2011 Flood and remediation and repair were proximately caused by the negligence of Merle H. Eisenstein, his agents, servants, workmen and/or employees. 101. As a direct and proximate cause of the aforesaid negligence of Merle H. Eisenstein his representatives, agents, servants and/ or employees, plaintiffs have been injured in an amount exceeding two million dollars ($ 2,000,000). SIXTH CAUSE OF ACTION Breach of Contract by Defendants Excalibur, Superior, Home Systems, Philips and Eisenstein 102. Plaintiffs repeat and reallege paragraphs 1 through 101 with the same force and effect as if fully set forth herein. Plaintiffs' 103. For the reasons set forth in First through Fifth Causes of Action defendants, Excalibur, Philips, Superior, Home Systems and Eisenstein breached their duties to plaintiffs in that they failed to properly supervise, control, design, install maintain, inspect, service, repair or handle the subject plumbing system and/or drainage pipes and sanitary pipes and failed to protect and preserve the property owned by plaintiffs. FILED: NEW YORK COUNTY CLERK 06/26/2018 04:04 PM INDEX NO. 150083/2014 NYSCEF DOC. NO. 133 RECEIVED NYSCEF: 06/26/2018 104. By reason of the aforesaid breach of contract, the April 18 Flood and the April 23, Flood and resulting property damage referred to above took place and resulted in substantial damage to the plaintiffs property and a loss to the Plaintiff in an amount in excess of two million dollars ($2,000,000). AS AND FOR A SEVENTH CAUSE OF ACTION For Breach of Contract by Defendants Philips 105. Plaintiffs repeat and reallege paragraphs 1 through 104 with the same force and effect as if fully set forth herein. 106. Defendants Philips breached their duties under the Turnkey agreement with Defendants. 107. Defendants Philips breached their duties under the equipment Service Agreement with defendants by failing to repair the Scanner. 108. Defendants Philips breached the contracts with Plaintiffs in that they failed to properly supervise, control, design, install, maintain, inspect service, repair or handle the subject plumbing system and or drainage pipes and sanitary pipes, failed to protect and preserve the property owned by plaintiffs being the cause of the damages suffered herein and failed to repair the Scanner damaged by the April 18, 2011 Flood and the April 23, 2011 Flood. 109. By reason of the aforesaid breach of the Turnkey contract, the April 18, 2011 Flood and the April 23, Flood and resulting property damage referred to above, caused substantial damage to the plaintiffs property and business loss to the Plaintiff in an amount in excess of two million dollars ($2,000,000). Philips' 110. By reason of breach of the Service Agreement, and breach of subsequent plaintiffs' agreements to make the Scanner operational, substantial damage occurred to property and business loss to plaintiffs in an amount in excess of two million dollars ($2,000,000). FILED: NEW YORK COUNTY CLERK 06/26/2018 04:04 PM INDEX NO. 150083/2014 NYSCEF DOC. NO. 133 RECEIVED NYSCEF: 06/26/2018 WHEREFORE Plaintiffs demand judgment jointly and severally against defendants for (a) for monetary relief in an amount in excess of two million dollars; (b) interest; (c) costs; (d) attorney's fees; (e) for such other and further relief as this court shall deem just and proper. Dated: Kew Gardens, New York January 6, 2014 LIPS1US-BENHAIM LAW, LLP Attorneys for Plaintiffs By: --- Ira S. Lipsius 80-02 Kew Gardens Road, Suite 1030 Kew Gardens, New York 11415 212-981-8440