Preview
FILED: KINGS COUNTY CLERK 11/04/2019 04:20 PM INDEX NO. 514069/2019
NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 11/04/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - X
21ST
326 STREET LLC,
THIRD-PARTY
Plaintiff SUMMONS
-against- Index No. 514069/2019
328 21 ST LLC, NYB BUILDERS INC.,
and REGAL RECONSTRUCTION CORP,
Defendants.
- - - ------ --------------------- - - - - ---- - - - X
NYB BUILDERS INC.,
Third-Party Plaintiff
-against-
ZUMBA'S BUILDERS INC.
Third-Party Defendant.
- - - - - - - - --- --- - - - - - - - - - - -- - - - - - - - - - - - - - - - X
TO THE ABOVE-NAMED DEFENDANT:
YOU ARE HEREBY SUMMONED to answer the Third-Party Complaint in this action, a copy
of which is hereby served upon you, and to serve copies of your Answer upon the undersigned
attorneys for Third-Party Plaintiff NYB Builders Inc., within twenty (20) days after service of
this Summons and Third-Party Complaint, exclusive of the day of service, or within (30) days
after the service is complete if this Summons is not personally delivered to you within the State
of New York, and in case of failure to appear or answer, judgment will be taken against you by
default for the relief demanded in the Third-Party Complaint.
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Dated: New York, New York
November 4, 2019
LONDON FISCHER LLP
Cory A. Simmons
Attorneys for Defendant
NYB Builders Inc.
59 Maiden Lane
New York, New York 10038
(212) 972-1000
File No.: 424.0567108
TO:
ZUMBA'S BUILDERS INC.
9235 52nd Ave
Elmhurst, New York 11373
(917) 447-3284
Jonathan C. Lerner, Esq.
LERNER, ARNOLD & WINSTON LLP
Attorneys for Plaintiff
475 Park Avenue South
28*
Floor
New York, New York 10016
(212) 686-4655
Jason J. Lavery, Esq.
KOSTER, BRADY & NAGLER, LLP
Attorneys for defendant
21³'
328 LLC
- 10*
One Whitehall Street Floor
New York, New York 10004
(212) 248-8800
Erica D. Vitanza, Esq.
LAW OFFICE OF THANIEL J. BEINERT
& ASSOCIATES
Attorney for Defendant
Regal Reconstruction Corp.
155 Bay Ridge Avenue
Brooklyn, New York 11220
(718) 921-6601
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
- - --------- - - - - - - - --- ---------- --- - - - - - - - X
21s'
326 STREET LLC,
THIRD-PARTY
Plaintif COMPLAINT
-against- Index No. 514069/2019
328 21 ST LLC, NYB BUILDERS INC.,
and REGAL RECONSTRUCTION CORP,
Defendants.
- _ - _ - --- --------------------- - ----- - - - - - - X
NYB BUILDERS INC.,
Third-Party Plaintif
-against-
ZUMBA'S BUILDERS INC.
Third-Party Defendant.
- - - - - - - - - - - -- - - - - -- -- --- - - --- - - - -- - - - - - - - X
Defendant/Third-Party Plaintiff, NYB Builders Inc. ("NYB") by their
attorneys, LONDON FISCHER LLP, state upon information and belief the following as and for
a Third-Party Complaint:
NATURE OF THIS ACTION
1. Third-Party Plaintiff NYB seeks to recover damages from Third-Party
Defendant Zumba's Builders Inc. for contribution, contractual indemnification, common-law
indemnification, breach of contract, and negligence with respect to alleged property damages
caused by Third-Party Defendant's failure to among other things properly perform their scope of
work on the project, namely shoring, underpinning, excavation, footing, and foundation work.
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PARTIES AND JURISDICTION
2. NYB is a New York domestic corporation authorized to do business in the
State of New York.
3. At all times hereinafter mentioned, Zumba's Builders Inc. ("Zumba's") was
and is a domestic corporation registered, authorized, duly organized or existing under and by
virtue of the laws of the State of New York and authorized to transact business in the State of
New York.
4. At all times hereinafter mentioned, Zumba's was and is a business
organization transacting business within the State of New York and pursuant to the laws of the
State of New York
5. This court has personal jurisdiction over third-party defendant Zumba's, and
venue is proper in the County of Kings because Zumba's, their agents, and/or subsidiaries and/or
affiliates engaged in the business of construction in the State of New York and the real property
at issue is located in the County of Kings, State of New York.
21st
6. According to Plaintiff's Complaint, Plaintiff's property located at 326
Street, Brooklyn, New York sustained damages attributable to among other things failure to
21St
underpin, shore or reinforce the foundation of the premises located at 328 Street, Brooklyn,
New York, failure to take into account soil conditions, failure to properly excavate, failure to
exercise due care in construction, failure to ensure excavation, underpinning, and shoring was
performed properly, and failure to ensure that construction work was performed in conformance
with the building, administrative, or fire codes of the City of New York. A copy of Plaintiff's
"A."
Complaint is annexed hereto as Exhibit
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7. NYB has denied all material allegations contained in the Complaint. Annexed
"B"
hereto as Exhibit is a copy of NYB's Answer to the Complaint.
THE WORK
8. NYB entered into a contract with Zumba's as the excavation contractor to
213t
perform services on the construction project located at 328 Street, Brooklyn, New York (the
"Project").
9. Zumba's agreed to perform the work free from defects in workmanship
and materials.
10. Zumba's agreed to defend, indemnify, and hold harmless NYB for any
subcontractors'
damages that arose from Zumba's or Zumba's work.
11. Assuming that Plaintiff can prove that their allegations are true, all of
which are denied by NYB, then Plaintiff's damages were caused by third-party defendant
Zumba's.
FIRST CAUSE OF ACTION
(Common Law Indemnification)
12. NYB repeats, reiterates, and realleges each and every allegation contained
"1" "11"
in paragraphs numbered through with the same force and effect as if set forth more
fully at length hereunder.
13. That if Plaintiff sustained any damages at the time and in the manner
alleged in Plaintiff's Complaint, all of which are denied by NYB, such damages were caused by
reason of the negligence, recklessness, carelessness and/or breach of duty by Zumba's by itself
and/or Zumba's subcontractors by recklessly, negligently, and carelessly performing
21St
construction work at 328 Street, Brooklyn, New York and deviating from plans and
specifications, without any negligence or fault on the part of NYB contributing thereto.
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14. That if NYB is held liable to Plaintiff herein, such liability arises out of
the negligence, carelessness, recklessness and/or breach of duty of Zumba's their agents,
servants, and/or their employees, either by themselves or in conjunction with other parties over
which NYB had no control, by recklessly, negligently, and carelessly failing to adequately
supervise its employees and by recklessly, negligently, and carelessly performing construction
21st
work at the 328 Street, Brooklyn, New York project, without any negligence or fault on the
part of NYB.
15. That by reason of Zumba's negligence, carelessness, recklessness and/or
breach of contractual obligation, Zumba's will be liable over, and for common law
indemnification to NYB for the full amount of any recovery claimed as against Zumba's,
attorneys'
including any and all fees and costs of investigation and disbursements.
16. By reason of the foregoing, NYB demands judgment for full common law
indemnification from third-party defendants for an amount to be determined and adjudicated at
trial, plus all legal fees, costs, disbursements and expenses incurred in connection with the
defense of this action.
SECOND CAUSE OF ACTION
(Contractual Indemnification)
17. NYB repeats, reiterates and realleges each and every allegation contained
"1" "16"
in paragraphs numbered through with the same force and effect as is set forth more
fully at length hereunder.
18. The contract between NYB and Zumba's includes an indemnification
provision.
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19. The contract between NYB and Zumba's, inclusive of the indemnification
provision, was in full force and effect on the date of the alleged incident that forms the basis of
this litigation.
20. That Zumba's is contractually obligated to defend and indemnify NYB,
including its agents and employees, with respect to the claims and allegations asserted by
Plaintiff as alleged in the Complaint.
21. NYB has been damaged by Zumba's breach of its contractual obligation to
defend and indemnify NYB and its agents and employees in connection with the underlying
action, and Zumba's will be liable, among other things, for the full amount of any recovery
obtained against NYB, including but not limited to the payment of any judgment rendered
attorneys'
against it and for all of NYB's fees, costs, and disbursements.
THIRD CAUSE OF ACTION
(Negligence)
22. NYB repeats, reiterates, and realleges each and every allegation contained
"1" "21"
in paragraphs through with the same force and effect as if set forth more fully at length
hereunder.
23. Zumba's owed a duty to NYB to furnish professional services and perform
construction work in accordance with the contract documents, and to ensure that such
professional services and construction work was performed with reasonable care, in a good,
suitable, and workmanlike manner and in accordance with accepted industry standards and
practices, such that the work would be in compliance with all applicable law, codes, rules, and
regulations and other governmental requirements.
24. If Plaintiff's allegations are true then Zumba's breached its duty to NYB
by furnishing professional services and performing construction work in a negligent fashion and
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contrary to accepted industry standards and practices, as a consequence of which negligence the
various professional services and construction work failed to comply in various respects with
applicable codes, rules, regulations and other governmental requirements.
25. If Plaintiff's allegations are true, then NYB has been damaged by the
negligence of Zumba's and Zumba's will be liable, among other things, for the full amount of
any recovery obtained against NYB, including but not limited to the payment of any judgment
attorneys'
rendered against it and for all of NYB's fees, costs, and disbursements.
FOURTH CAUSE OF ACTION
(Contribution)
26. NYB repeats, reiterates, and realleges each and every allegation contained
"1" "25"
in paragraphs through with the same force and effect as if set forth more fully at length
hereunder.
27. That if Plaintiff is awarded judgment and/or recovers damages from NYB,
same will be entitled to a claim over and against Zumba's for an apportionment of liability and
damages by reason of the negligence, recklessness, carelessness and/or breach of duty by
Zumba's by itself and/or Zumba's agents by recklessly, negligently, and carelessly furnishing
21"
professional services and performing construction work at 328 Street, Brooklyn, New York
without any negligence or fault on the part of NYB.
28. That NYB demands judgment over and against Zumba's for the amount
and/or share of liability and damages proportionate to Zumba's responsibility for and/or
causation of the circumstances that resulted in Plaintiff's alleged damages.
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FIFTH CAUSE OF ACTION
(Breach of Contract)
29. NYB repeats, reiterates, and realleges each and every allegation contained
"1" "28"
in paragraphs through with the same force and effect as if set forth more fully at length
hereunder.
30. NYB entered into a contract with Zumba's to perform shoring,
underpinning, excavation, footing, and foundation construction and services on the project
21"
located at 328 Street, Brooklyn, New York. Zumba's agreed to perform the work free from
defects in workmanship and materials.
31. If Plaintiff's allegations are true, then Zumba's furnished the work and
services under its contract with such negligence and disregard for duty that it has breached its
contract with NYB, and NYB has been damaged thereby,
32. As a result of Zumba's breach of contract, NYB has been damaged
thereby and Zumba's is responsible to NYB for breach of contract.
SIXTH CAUSE OF ACTION
(Breach of Contract for failure to Procure Insurance Coverage
Naming NYB as Additional Insured)
33. NYB repeats, reiterates, and realleges each and every allegation contained
"1" "32"
in paragraphs through with the same force and effect as if set forth more fully at length
hereunder.
34. Among the terms and conditions of the contract executed by and between
NYB and Zumba's, Zumba's agreed to obtain and maintain insurance coverage at its own
expense providing additional insured coverage to NYB to cover the occurrences giving rise to
Plaintiff's alleged damages.
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35. Zumba's failed to secure and obtain the insurance coverage required under
the contract between NYB and Zumba's.
36. As a result of Zumba's failure to secure and obtain insurance coverage
required by the contract between NYB and Zumba's, NYB has been damaged thereby, and
Zumba's is responsible to NYB for payments and discharge of their liability to the extent of the
Plaintiffs'
required policy limits and the cost of defending and indemnifying against claims.
WHEREFORE, Defendant/Third-Party Plaintiff NYB demands judgment against
Zumba's in the full amount of any judgment which is obtained by Plaintiff against NYB, or in
the amount of the equitable share of said judgment of Zumba's together with the costs and
disbursements of this action.
Dated: New York, New York
November 4, 2019
LONDON FISCHER LLP
A. Simmons
Attorneys for Defendant
NYB Builders Inc.
59 Maiden Lane
New York, New York 10038
(212) 972-1000
TO:
ZUMBA'S BUILDERS INC.
9235 52nd Ave
Elmhurst, New York 11373
(917) 447-3284
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Jonathan C. Lerner, Esq.
LERNER, ARNOLD & WINSTON LLP
Attorneys for Plaintiff
475 Park Avenue South
28th
PlOOr
New York, New York 10016
(212) 686-4655
Jason J. Lavery, Esq.
KOSTER, BRADY & NAGLER, LLP
Attorneys for defendant
21"
328 LLC
- 10th
One Whitehall Street FlOOT
New York, New York 10004
(212) 248-8800
Erica D. Vitanza, Esq.
LAW OFFICE OF THANIEL J. BEINERT
& ASSOCIATES
Attorney for Defendant
Regal Reconstruction Corp.
155 Bay Ridge Avenue
Brooklyn, New York 11220
(718) 921-6601
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FILED: KINGS COUNTY CLERK 11/04/2019 04:20 PM INDEX NO. 514069/2019 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 11/04/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - X 21ST 326 STREET LLC, THIRD-PARTY Plaintiff SUMMONS -against- Index No. 514069/2019 328 21 ST LLC, NYB BUILDERS INC., and REGAL RECONSTRUCTION CORP, Defendants. - - - ------ --------------------- - - - - ---- - - - X NYB BUILDERS INC., Third-Party Plaintiff -against- ZUMBA'S BUILDERS INC. Third-Party Defendant. - - - - - - - - --- --- - - - - - - - - - - -- - - - - - - - - - - - - - - - X TO THE ABOVE-NAMED DEFENDANT: YOU ARE HEREBY SUMMONED to answer the Third-Party Complaint in this action, a copy of which is hereby served upon you, and to serve copies of your Answer upon the undersigned attorneys for Third-Party Plaintiff NYB Builders Inc., within twenty (20) days after service of this Summons and Third-Party Complaint, exclusive of the day of service, or within (30) days after the service is complete if this Summons is not personally delivered to you within the State of New York, and in case of failure to appear or answer, judgment will be taken against you by default for the relief demanded in the Third-Party Complaint. {N1568587.1 } 1 of 11 FILED: KINGS COUNTY CLERK 11/04/2019 04:20 PM INDEX NO. 514069/2019 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 11/04/2019 Dated: New York, New York November 4, 2019 LONDON FISCHER LLP Cory A. Simmons Attorneys for Defendant NYB Builders Inc. 59 Maiden Lane New York, New York 10038 (212) 972-1000 File No.: 424.0567108 TO: ZUMBA'S BUILDERS INC. 9235 52nd Ave Elmhurst, New York 11373 (917) 447-3284 Jonathan C. Lerner, Esq. LERNER, ARNOLD & WINSTON LLP Attorneys for Plaintiff 475 Park Avenue South 28* Floor New York, New York 10016 (212) 686-4655 Jason J. Lavery, Esq. KOSTER, BRADY & NAGLER, LLP Attorneys for defendant 21³' 328 LLC - 10* One Whitehall Street Floor New York, New York 10004 (212) 248-8800 Erica D. Vitanza, Esq. LAW OFFICE OF THANIEL J. BEINERT & ASSOCIATES Attorney for Defendant Regal Reconstruction Corp. 155 Bay Ridge Avenue Brooklyn, New York 11220 (718) 921-6601 {N1568587.1 } 2 of 11 FILED: KINGS COUNTY CLERK 11/04/2019 04:20 PM INDEX NO. 514069/2019 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 11/04/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS - - --------- - - - - - - - --- ---------- --- - - - - - - - X 21s' 326 STREET LLC, THIRD-PARTY Plaintif COMPLAINT -against- Index No. 514069/2019 328 21 ST LLC, NYB BUILDERS INC., and REGAL RECONSTRUCTION CORP, Defendants. - _ - _ - --- --------------------- - ----- - - - - - - X NYB BUILDERS INC., Third-Party Plaintif -against- ZUMBA'S BUILDERS INC. Third-Party Defendant. - - - - - - - - - - - -- - - - - -- -- --- - - --- - - - -- - - - - - - - X Defendant/Third-Party Plaintiff, NYB Builders Inc. ("NYB") by their attorneys, LONDON FISCHER LLP, state upon information and belief the following as and for a Third-Party Complaint: NATURE OF THIS ACTION 1. Third-Party Plaintiff NYB seeks to recover damages from Third-Party Defendant Zumba's Builders Inc. for contribution, contractual indemnification, common-law indemnification, breach of contract, and negligence with respect to alleged property damages caused by Third-Party Defendant's failure to among other things properly perform their scope of work on the project, namely shoring, underpinning, excavation, footing, and foundation work. {N1568587.1 } 3 of 11 FILED: KINGS COUNTY CLERK 11/04/2019 04:20 PM INDEX NO. 514069/2019 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 11/04/2019 PARTIES AND JURISDICTION 2. NYB is a New York domestic corporation authorized to do business in the State of New York. 3. At all times hereinafter mentioned, Zumba's Builders Inc. ("Zumba's") was and is a domestic corporation registered, authorized, duly organized or existing under and by virtue of the laws of the State of New York and authorized to transact business in the State of New York. 4. At all times hereinafter mentioned, Zumba's was and is a business organization transacting business within the State of New York and pursuant to the laws of the State of New York 5. This court has personal jurisdiction over third-party defendant Zumba's, and venue is proper in the County of Kings because Zumba's, their agents, and/or subsidiaries and/or affiliates engaged in the business of construction in the State of New York and the real property at issue is located in the County of Kings, State of New York. 21st 6. According to Plaintiff's Complaint, Plaintiff's property located at 326 Street, Brooklyn, New York sustained damages attributable to among other things failure to 21St underpin, shore or reinforce the foundation of the premises located at 328 Street, Brooklyn, New York, failure to take into account soil conditions, failure to properly excavate, failure to exercise due care in construction, failure to ensure excavation, underpinning, and shoring was performed properly, and failure to ensure that construction work was performed in conformance with the building, administrative, or fire codes of the City of New York. A copy of Plaintiff's "A." Complaint is annexed hereto as Exhibit (Nl568587.1 } 4 of 11 FILED: KINGS COUNTY CLERK 11/04/2019 04:20 PM INDEX NO. 514069/2019 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 11/04/2019 7. NYB has denied all material allegations contained in the Complaint. Annexed "B" hereto as Exhibit is a copy of NYB's Answer to the Complaint. THE WORK 8. NYB entered into a contract with Zumba's as the excavation contractor to 213t perform services on the construction project located at 328 Street, Brooklyn, New York (the "Project"). 9. Zumba's agreed to perform the work free from defects in workmanship and materials. 10. Zumba's agreed to defend, indemnify, and hold harmless NYB for any subcontractors' damages that arose from Zumba's or Zumba's work. 11. Assuming that Plaintiff can prove that their allegations are true, all of which are denied by NYB, then Plaintiff's damages were caused by third-party defendant Zumba's. FIRST CAUSE OF ACTION (Common Law Indemnification) 12. NYB repeats, reiterates, and realleges each and every allegation contained "1" "11" in paragraphs numbered through with the same force and effect as if set forth more fully at length hereunder. 13. That if Plaintiff sustained any damages at the time and in the manner alleged in Plaintiff's Complaint, all of which are denied by NYB, such damages were caused by reason of the negligence, recklessness, carelessness and/or breach of duty by Zumba's by itself and/or Zumba's subcontractors by recklessly, negligently, and carelessly performing 21St construction work at 328 Street, Brooklyn, New York and deviating from plans and specifications, without any negligence or fault on the part of NYB contributing thereto. {N1568587.1 } 5 of 11 FILED: KINGS COUNTY CLERK 11/04/2019 04:20 PM INDEX NO. 514069/2019 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 11/04/2019 14. That if NYB is held liable to Plaintiff herein, such liability arises out of the negligence, carelessness, recklessness and/or breach of duty of Zumba's their agents, servants, and/or their employees, either by themselves or in conjunction with other parties over which NYB had no control, by recklessly, negligently, and carelessly failing to adequately supervise its employees and by recklessly, negligently, and carelessly performing construction 21st work at the 328 Street, Brooklyn, New York project, without any negligence or fault on the part of NYB. 15. That by reason of Zumba's negligence, carelessness, recklessness and/or breach of contractual obligation, Zumba's will be liable over, and for common law indemnification to NYB for the full amount of any recovery claimed as against Zumba's, attorneys' including any and all fees and costs of investigation and disbursements. 16. By reason of the foregoing, NYB demands judgment for full common law indemnification from third-party defendants for an amount to be determined and adjudicated at trial, plus all legal fees, costs, disbursements and expenses incurred in connection with the defense of this action. SECOND CAUSE OF ACTION (Contractual Indemnification) 17. NYB repeats, reiterates and realleges each and every allegation contained "1" "16" in paragraphs numbered through with the same force and effect as is set forth more fully at length hereunder. 18. The contract between NYB and Zumba's includes an indemnification provision. {N1568587.1 } 6 of 11 FILED: KINGS COUNTY CLERK 11/04/2019 04:20 PM INDEX NO. 514069/2019 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 11/04/2019 19. The contract between NYB and Zumba's, inclusive of the indemnification provision, was in full force and effect on the date of the alleged incident that forms the basis of this litigation. 20. That Zumba's is contractually obligated to defend and indemnify NYB, including its agents and employees, with respect to the claims and allegations asserted by Plaintiff as alleged in the Complaint. 21. NYB has been damaged by Zumba's breach of its contractual obligation to defend and indemnify NYB and its agents and employees in connection with the underlying action, and Zumba's will be liable, among other things, for the full amount of any recovery obtained against NYB, including but not limited to the payment of any judgment rendered attorneys' against it and for all of NYB's fees, costs, and disbursements. THIRD CAUSE OF ACTION (Negligence) 22. NYB repeats, reiterates, and realleges each and every allegation contained "1" "21" in paragraphs through with the same force and effect as if set forth more fully at length hereunder. 23. Zumba's owed a duty to NYB to furnish professional services and perform construction work in accordance with the contract documents, and to ensure that such professional services and construction work was performed with reasonable care, in a good, suitable, and workmanlike manner and in accordance with accepted industry standards and practices, such that the work would be in compliance with all applicable law, codes, rules, and regulations and other governmental requirements. 24. If Plaintiff's allegations are true then Zumba's breached its duty to NYB by furnishing professional services and performing construction work in a negligent fashion and {N1568587.1 } 7 of 11 FILED: KINGS COUNTY CLERK 11/04/2019 04:20 PM INDEX NO. 514069/2019 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 11/04/2019 contrary to accepted industry standards and practices, as a consequence of which negligence the various professional services and construction work failed to comply in various respects with applicable codes, rules, regulations and other governmental requirements. 25. If Plaintiff's allegations are true, then NYB has been damaged by the negligence of Zumba's and Zumba's will be liable, among other things, for the full amount of any recovery obtained against NYB, including but not limited to the payment of any judgment attorneys' rendered against it and for all of NYB's fees, costs, and disbursements. FOURTH CAUSE OF ACTION (Contribution) 26. NYB repeats, reiterates, and realleges each and every allegation contained "1" "25" in paragraphs through with the same force and effect as if set forth more fully at length hereunder. 27. That if Plaintiff is awarded judgment and/or recovers damages from NYB, same will be entitled to a claim over and against Zumba's for an apportionment of liability and damages by reason of the negligence, recklessness, carelessness and/or breach of duty by Zumba's by itself and/or Zumba's agents by recklessly, negligently, and carelessly furnishing 21" professional services and performing construction work at 328 Street, Brooklyn, New York without any negligence or fault on the part of NYB. 28. That NYB demands judgment over and against Zumba's for the amount and/or share of liability and damages proportionate to Zumba's responsibility for and/or causation of the circumstances that resulted in Plaintiff's alleged damages. {N1568587.t } 8 of 11 FILED: KINGS COUNTY CLERK 11/04/2019 04:20 PM INDEX NO. 514069/2019 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 11/04/2019 FIFTH CAUSE OF ACTION (Breach of Contract) 29. NYB repeats, reiterates, and realleges each and every allegation contained "1" "28" in paragraphs through with the same force and effect as if set forth more fully at length hereunder. 30. NYB entered into a contract with Zumba's to perform shoring, underpinning, excavation, footing, and foundation construction and services on the project 21" located at 328 Street, Brooklyn, New York. Zumba's agreed to perform the work free from defects in workmanship and materials. 31. If Plaintiff's allegations are true, then Zumba's furnished the work and services under its contract with such negligence and disregard for duty that it has breached its contract with NYB, and NYB has been damaged thereby, 32. As a result of Zumba's breach of contract, NYB has been damaged thereby and Zumba's is responsible to NYB for breach of contract. SIXTH CAUSE OF ACTION (Breach of Contract for failure to Procure Insurance Coverage Naming NYB as Additional Insured) 33. NYB repeats, reiterates, and realleges each and every allegation contained "1" "32" in paragraphs through with the same force and effect as if set forth more fully at length hereunder. 34. Among the terms and conditions of the contract executed by and between NYB and Zumba's, Zumba's agreed to obtain and maintain insurance coverage at its own expense providing additional insured coverage to NYB to cover the occurrences giving rise to Plaintiff's alleged damages. {N1568587.1 ) 9 of 11 FILED: KINGS COUNTY CLERK 11/04/2019 04:20 PM INDEX NO. 514069/2019 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 11/04/2019 35. Zumba's failed to secure and obtain the insurance coverage required under the contract between NYB and Zumba's. 36. As a result of Zumba's failure to secure and obtain insurance coverage required by the contract between NYB and Zumba's, NYB has been damaged thereby, and Zumba's is responsible to NYB for payments and discharge of their liability to the extent of the Plaintiffs' required policy limits and the cost of defending and indemnifying against claims. WHEREFORE, Defendant/Third-Party Plaintiff NYB demands judgment against Zumba's in the full amount of any judgment which is obtained by Plaintiff against NYB, or in the amount of the equitable share of said judgment of Zumba's together with the costs and disbursements of this action. Dated: New York, New York November 4, 2019 LONDON FISCHER LLP A. Simmons Attorneys for Defendant NYB Builders Inc. 59 Maiden Lane New York, New York 10038 (212) 972-1000 TO: ZUMBA'S BUILDERS INC. 9235 52nd Ave Elmhurst, New York 11373 (917) 447-3284 {N1568587.1 } 10 of 11 FILED: KINGS COUNTY CLERK 11/04/2019 04:20 PM INDEX NO. 514069/2019 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 11/04/2019 Jonathan C. Lerner, Esq. LERNER, ARNOLD & WINSTON LLP Attorneys for Plaintiff 475 Park Avenue South 28th PlOOr New York, New York 10016 (212) 686-4655 Jason J. Lavery, Esq. KOSTER, BRADY & NAGLER, LLP Attorneys for defendant 21" 328 LLC - 10th One Whitehall Street FlOOT New York, New York 10004 (212) 248-8800 Erica D. Vitanza, Esq. LAW OFFICE OF THANIEL J. BEINERT & ASSOCIATES Attorney for Defendant Regal Reconstruction Corp. 155 Bay Ridge Avenue Brooklyn, New York 11220 (718) 921-6601 {N1568587.1 } 11 of 11