Preview
FILED: KINGS COUNTY CLERK 08/20/2020 05:44 PM INDEX NO. 514069/2019
NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 08/20/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
- - -- - - -- - - -- - - -- - - -- - - -- - - -- - - -- - - -- - - -- - X
21ST
326 STREET LLC,
Index No. 514069/2019
Plaintiff,
AFFIDAVIT OF
-against- YEHUDA BINIAMIN
328 21 ST LLC, NYB BUILDERS INC.,
and REGAL RECONSTRUCTION CORP,
Defendants.
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NYB BUILDERS INC.,
Third-Party Plaintiff
-against-
ZUMBA'S BUILDERS INC.
Third-Party Defendant.
- -- - - ----- --------- - -- - - - -- - - -- - - -- - - -- - - X
STATE OF NEW YORK )
) ss.:
COUNTY OF )
Yehuda Biniamin, being duly sworn, deposes and says the following:
1. This Affidavit is submitted in support of the motion by NYB Builders Inc.
("NYB") for a default judgment against Zumba's Builders Inc. ("Zumba's").
2. I am the President of NYB, and I have personal knowledge of the facts and
21"
circumstances of certain work that NYB retained Zumba's to perform at 328 Street,
Brooklyn, New York 11215 (the "Premises").
3. NYB was the construction manager on a construction project at the Premises.
On June 11, 2018, NYB executed a contract with Zumba's, as subcontractor, to perform work at
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the premises (the "Zumba's Contract"). A copy of the Zumba's Contract is annexed to this
affidavit as Exhibit "1".
4. The Zumba's Contract was executed in the regular and ordinary course of
NYB's business.
5. Pursuant to the Zumba's Contract, the scope of Zumba's work included, among
other things, excavating, underpinning, and foundation work. See Exhibit 1 at Exhibit A.
6. The Zumba's Contract included a hold harmless and indemnification provision
that states:
To the fullest extent permitted by law, the Subcontractor agrees to
indemnify, defend and hold harmless the Owner and the
Contractor, as well as all parties listed below, if any, their officers,
directors, agents, employees, members and partners (hereafter
collectively "Indemnitees") from any and all claims, suits,
attorneys'
damages, liabilities, professional fees, including fees,
costs, court costs, expenses and disbursements related to death,
bodily injury or property damage (including loss of use thereof)
brought against any of the Indemnitees by any person or entity,
arising or alleged to be arising out of or in connection with or as a
result or consequence of the performance of the Work of
as well as additional extra or add-
Subcontractor, any work, work,
on work, whether or not caused in whole or in part by the
Subcontractor or any person or entity employed, either directly or
indirectly by the Subcontractor including any subcontractors
thereof and their employees. The parties expressly agree that this
indemnification agreement contemplates 1) full indemnity in the
event of liability imposed against the Indemnitees without
negligence; and 2) partial indemnity in the event of any actual
negligence on the part of the Indemnitees either causing or
contributing to the underlying claim which negligence is expressly
excepted from the Subcontractor's obligation to indemnify.
Attorneys fees, court costs, expenses and disbursements shall be
defined without limit to include those fees, costs, etc. incurred in
defending the underlying claim and those fees, costs, etc. incurred
in connection with the enforcement of this Agreement.
Indemnification under this Agreement shall operate whether or not
the Subcontractor has placed and maintained the insurance
required under this agreement. The Subcontractor shall cause all
subcontract agreements it enters into to include this
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indemnification clause so as to ensure that the Indemnitees shall
have the same protection from subcontractors as all tiers as is
afforded by the Subcontractor hereunder.
See Exhibit 1 at Exhibit B.
7. Zumba's was also contractually obligated to obtain additional insured
coverage, including primary commercial general liability insurance and excess/umbrella liability
insurance, that named NYB as an additional insured. See Exhibit 1 at Exhibit B.
8. The Zumba's Contract further required Zumba's to "take reasonable means to
protect allthe adjoining property and to perform and/or pay for and bear the costs of the repair or
negligence."
replacement to any such properties damaged or destroyed by the subcontractor's
See Exhibit 1 ¶ 9.
9. In this action, plaintiff, 326 21st Street LLC, alleges that it owned an adjoining
property which sustained property damages caused by, among other things, failure to underpin,
21"
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 was performed
shoring
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 Amended
Complaint is annexed hereto as Exhibit "2".
10. Zumba's is contractually obligated to defend and indemnify NYB with
respect to plaintiff's claims.
11. Zumba's represented to NYB that itpurchased additional insured coverage
for NYB from Northfield Excess & Surplus Lines ("Northfield") under policy number
WH009341.
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"3"
NYB. Attached to this Affidavit as Exhibit is a copy of the tender letter and Northfield's
response.
13. If Northfield continues to refuse to provide NYB with additional insured
coverage with respect to Zumba's claim, then Zumba's breached itscontract with NYB by failing
to provide the insurance coverage required by the Zumba's Contract.
14. NYB had no alternative but to commence this third-party lawsuit.
15. Zumba's has refused to answer the Third-Party Complaint that was filed on
behalf of NYB in this lawsuit.
16. NYB has a meritorious cause of action against Zumba's in this case for
contractual indemnification, common-law indemnification, contribution and breach of contract for
failure to procure additional insured coverage for NYB. NYB, as third-party plaintiff, will be
extremely prejudiced if a default judgment is not entered against Zumba's, as third-party
defendant, in this lawsuit.
17. I have read the foregoing paragraphs and know them to be true and accurate.
Dated: Brooklyn, New York
August./f, 2020
Y A BINIAMIN
Sworn to before me this
day of August 2020
o y Public
YlNY C. CASTRO
Notary Public, State of New York
No. 01CA6351727
Qualif.ed in Queens County
CommissionExpiresDecember 12,20
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EXHIBIT 1
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SUBCONTRACT
AGREEMENT made as of the 11th day of June in the year Two Thousand and
Eighteen (2018)
Between the Contractor:
NYB Builders Inc.
1803 Atlantic Avenue
Brooklyn, NY 11233
And the Subcontractor:
Zumba's Builders Inc.
52nd
92-35 Avenue
Elmhurst, N.Y. 11373
The Contractor has made a contract for construction with the Owner:
328 21 Street LLC
For the following Project:
21st
328 Street
At the Property:
21st
328 Street, Brooklyn, NY 11215
The Architect/Engineer for the Project is:InFocus
DOB approved plans job number:
NB: 321189682
Contractor Initials Date:
Subcontractor Initials b
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Whereas the Subcontractor has reviewed the plans, specifications, conditions, and addenda to
the general contract between Contractor and Owner for the Project, has visited the job site,has
no reservations with regard to its duty to perform, and is bound to Contractor, the Contractor and
Subcontractor agree as follows:
1. The Subcontract Documents. The Subcontract documents consist of this agreement,
any project proposals issued by this subcontractor, allproject drawings, specifications and scopes
of work concerning this Subcontractor's work only, which are specifically enumerated in Exhibit
"A", annexed hereto, and any documents referenced in this agreement.
2. Subcontractors inspection of site conditions. The Subcontractor acknowledges
that ithas carefully and thoroughly familiarized themselves with the project via visual inspection
and examination of the project, the project site and the project site conditions. in the event the
Subcontractor claims to encounter a previously unknown surface or subsurface physical
condition at the site, itshall give immediate notice to the Contractor of such conditions within
twenty four (24) hours of discovery and before the condition is disturbed so that the condition
may be investigated.
3. Scope of Work. Subcontractor agrees to commence itswork within five (5) days of
notification by Contractor, and to perform such work in strict accordance with the Contract
Documents under the direction of Contractor in accord with Owner's requirements as reflected by
the contract documents and subject to Owner's and Contractor's approval. Any changes to such
work not in strict accordance with the Contract Documents must be brought to the Contractor's
attention and noted in the site log. Subcontractor isto furnish all clean-
material, labor, equipment,
up, necessary services and warranties to fully complete the subcontract Work as described in
Exhibit A attached. Developer shall pay all material expenses either directly to the Supplier or
shall reimburse Subcontractor for all material expenses incurred. Any materials supplied by
Subcontractor shall be new and shall meet or exceed the specifications as described in Exhibit
A and any applicable state, city, town or local code, law or guideline. IfDeveloper is supplier of
any or all materials, Subcontractor shall confirm that the materials meet the said applicable
standards. AII materials, upon delivery, shall be inspected and warranted by Subcontractor, and
thus incorporated into the project, unless Subcontractor rejects said materials, in a writing
delivered to the Contractor, before the end of business on the day of delivery. Failure to reject the
materials in a timely manner shall be deemed a waiver by Subcontractor of any claim against
Contractor or Owner that the materials were defective or deficient in any way and any defects of
deficiencies in materials that are not rejected are the sole responsibility of Subcontractor. AII of
Subcontractor's work must comply with any and allapplicable codes, laws, rules and regulations.
Where any code, law rule or regulation conflicts, the higher standard shall be met. Additionally,
all warranties which Subcontractor is to provide pursuant to the contract specifications shall
commence when the entire project is accepted by the Owner, shall be for not less of a term and
duration than the Contract is obligated to provide to consumers pursuant to New York General
Business Law Section 777-A, and will be in force as described in Exhibit A attached unless a
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Subcontractor Init
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manufacturer warranty applies for a longer period, in which case the longer manufadurer warranty
shall control.
4. Subcontractor Sum and Payments. Contractor agrees to pay Subcontractor the sum
of One Hundred Sixty Seven Thousand ($167,000.00) Dollars and Zero Cents in accordance
with the payment schedule as described in Exhibit A attached as payment for timely completion
of itsSubcontractor Work. All fees and taxes, including alluse taxes, freight, insurances, material
costs, fabrication costs, debris removal arising out of Subcontractor's work, dumping/refuse fees,
cost of performing the scope of work, supervision costs, inspections performed by Subcontractor,
licensing and permits, but limited to crane permit only, to perform the scope of work are included
in the Subcontract price. IfContractor is paid by Owner forthe increased costs in material of any
kind, including, but not limited to, concrete, steel, fuel or petroleum based products or increases
in insurance, permit or dumping/refuse fees, then the Contractor shall pay same to subcontractor.
Said progress payments are to be made as follows:
(a) Periodic progress payments shall be made to Subcontractor for work performed if
in conformity with the plans, specifications, and subcontractor's proposal, including
such changes as approved by Owner and Contractor's representative within thirty
(30) days from approval of Subcontractor's work by the architect or other Owner's
representative. Determinations of percentages of completion and substantial
completicñ to be made and verified by the Contractor. Ten percent (10%) shall be
withheld from each payment as retainage. The Contractor may reduce the
percentage or retainage as Contractor, in itssole discretion, reasonably deems
appropriate.
(b) Final Payment of Balance due. Final payments shall be made when the terms of
completion defined in Exhibit A are made and in accordance with the time frames
set forth in Exhibit A.
5. Schedule. Subcontractor agrees to complete the scope of work of this subcontract as
described in Exhibit A attached, subject to adjustment for change orders. Subcontractor shall
provide Contractor with scheduling information for Subcontractor's work and comply with
Contractor's schedule as may be revised by Contractor while the work progresses. Additional
monetary compensation arising out of any revised schedule, including design issues, shall be
determined by Change Orders. The Subcontractor must provide Contractor written notice of any
request for an extension of time within two (2) working days of when itknows of the need for such
time extension with a description of its impact on the job.
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Contractor Initials Date:
Subcontractor Initials/
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6. Changes and Additions. Claims for possible extra or additional work may be
permitted only upon prior written change order signed by the contractor. Prior to the
commencement of any change or additional work the subcontractor must submit promptly to the
contractor a written change order setting forth the scope of work of the proposed change/addition,
and the proposed costs and the change order must be sigñed by the contractor prior to the
commencement of the work. In no event shall Contractor or its agents direct subcontractor to
perform extra or additional work without first issuing a written change order signed by the
Contractor, and in such regard, Subcontractor shall not be required to perform any extra or
additional work without firstreceiving such a written change order unless such work is directed
by the Contractor in the field as a result of an emergency condition where there is no a reasonable
opportunity to reduce the field directive to a written change order.
7. Insurance. Prior to starting work, Subcontractor, at its expense shall obtain and
maintain in force, on all operations, insurance in accordance with Exhibit B. The policies of
insurance shall be in such form and shall be issued by such company and duly licensed by the
State of New York. Contractor and Owner shall be added as an additional insured to each policy,
certificate and endorsement. Subcontractor shall provide a certificate of insurance and
endorsement to Contractor to evidence policies. Contractor shall receive at least thirty (30) days
notice of any proposed cance"etioñ due to non-payment of premiums by Subcontractor.
(a) Within two (2) days of executing this agreement, Subcontractor shall provide
contractor with a full and complete copy of its commercial general liability
insurance policy then in place. Contractor may, within two (2) days of receiving
such policy from Subcontractor, cancel this Agreement without penalty if it
determines that the policy does not comply with the requirements of this
agreement. Nothing herein shall oblige the Contractor to review the Policy or
excuse Subcontractor's non-compliance with the terms of this Contract by
providing a Policy that is non-compliant.
(b) Subcontractor represents and warrants that the insurance policy that it
presents to contractor will be a true, accurate and fullcopy of the insurance
policy and recognizes that Subcontractor's representations are being relied
upon by the Contractor in executing this Contract and but for Subcontractor's
representations this Contract would not be executed by the Contractor.
(c) Subcontractor represents that itwas truthful and honest in any applications it
submitted to its insurance carrier in connection with its obtaining of an
insurance policy and recognizes that Subcontractor's representations are
being relied upon by the Contractor in executing this Contract and but for
Subcontractor's representations this Contract would not be executed by the
Contractor.
(d) Subcontractor's policy of insurance must contain a provision providing that it
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Contractor Initials Date:
Subcontractor Initials f1
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covers Subcontractor's contractual liability. If Subcontractor's policy of
insurance provides coverage for contractual liability
only in the event that such
contract"
liability arises out of an "insured then such definition of "insured
contract"
in the policy must include a provision such that this agreement as
contract"
written would qualify as an "insured under the Subcontractor's policy.
(e) Subcontractor's policy of insurance must not include an employer's liability
exclusion unless: (i)such exclusion is not applicable liabilityarising out of an
contract"
"insured contract"; and (ii)this agreement qualifies as an "insured
under the Subcontractor's policy.
(f) Any violation of this Section 7 by Subcontractor shall be immediate grounds for
Contractor to terminate this agreement for cause.
8. Damage to Work. All loss or damage to Subcontractor's Work resulting from any
cause whatsoever shall be borne by Subcontractor and shall be solely at its risk until installed,
but Subcontractor shall have the right to seek indemnification or make such other claims against
the party responsible for such damage. During the Subcontract term, Subcontractor shall, at its
sole expense, properly protect its own employees, laborers, materialmen, agents, materials,
suppliers, tools and equipment against any damage, injury, destruction, theft or loss and in no
event shall Contractor be liable or responsible therefore, unless caused by Contractor's conduct.
Subcontractor shall at its own cost and expense promptly repair or replace damage to work of
others, or to the Project, resulting from itsnegligent activities.
9. Damage to neighboring and/or Adjoining Property. The Subcontractor is required
to take reasonable means to protect allthe adjoining property and to perform and/or pay for and
bear the costs of the repair or replacement to any such properties damaged or destroyed by the
subcontractor's negligence. The Subcontractor assumes allliability and holds this Contractor and
the owner harmless from any damage caused to any adjoining or neighboring property which is
caused by or resulting from the Subcontractors negligence.
(a) Ifthe Subcontractor's scope of work includes any underpinning or excavation work,
and such project is within the City of New York, then Subcontractor represents and
warrants that itis familiar with the following sections of the New York City Building
Code: §1704.19, §3309.2 and §3309.5. Subcontractor agrees that should it be
required to obtain any license required under §3309.2 then it shall solely bear the costs
of obtaining such license and shall not look to the Contractor or the Owner for
reimbursement of any costs associated with obtaining a license under §3309.2.
(b) Ifthe Subcontractor's scope of work includes any underpinning or excavation work,
then Subcontractor represents and warrants that its general liabilityinsurance policy
movement"
does not contain any exclusions for "earth or for damage arising out of the
performance of excavation or underpinning activities.
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Contractor Initials Date:
Subcontractor Initials fd-
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10. Compliance with Law and Safety. All work to be furnished by Subcontractor must
strictly comply with all applicable federal, state and local laws, regulations, statutes, ordinances
and directives (hereinafter "Laws") now in force and
hereafter in effect. All work, labor, services or materials necessary to comply with said Laws shall
be furnished by Subcontractor without additional compensation. Subcontractor shall comply with
allapplicable safety laws, including, but not limited to, New York Labor Law §§ 240 and 241, the
New York City Construction Code, the New York City Fire Code, National Fire Protection
Association guidelines, New York City Department of Environmental Protection rules and
regulations, New York City and State Department of Transportation rules and guidelines, and with
any reasonable safety standards which may be established during the progress of the Work by
the Contractor. Ifrequested, Subcontractor shall submit a safety plan for review by Contractor.
When ordered, either orally or in writing, Subcontractor shall stop any part of the Work which
Contractor reasonably and in good faith deems unsafe until corrective measures satisfactory to
Contractor deems have been taken. IfContractor's stopping of Subcontractor's work isfound not
reasonable or not in good faith, Contractor shall be responsible for costs incurred by the
Subcontractor arising out of the Contractor's actions. Subcontractor may be terrhiñated for cause
days'
with three (3) notice due to itsfailure to take such corrective measures. Subcontractor shall
be responsible for any incident due to Subcontractor not meeting the applicable safety
requirements, resulting in Subcontractor's default. Subcontractor shall be responsible for any
violations or penalties issued to Developer or Contractor due to Subcontractor's lack in meeting
the application safety requirements, resulting in Subcontractor's default. Subcontractor also shall
timely submit copies of allaccident or injury reports to Contractor not less than two (2) days after
Subcontractor learns of any accident or injury regardless of whether Subcontractor believes
Subcontractor and/or Contractor may not have any liabilityfor such accident or injury.
11. Choice of Law and attorney's fees. This agreement shall be construed and
governed by the laws of New York. Subject to paragraph 12 below, the venue of any proceeding
related to this Subcontract shall be in the Supreme Court of the State of New York, in the County
of Queens unless venue in another county is required by law and in that case the county of venue
shall be the county required by law. In the event of litigation arising out of this subcontract, the
prevailing party shall be entitled to recover from the other party allattorney's fees, court costs,
expert witness fees, and other expenses arising out of such action.
12. Arbitration. At the sole discretion of the Contractor, any dispute arising out of
this subcontract may be submitted to binding arbitration. Ifthe Contractor does elect arbitration
then the arbitration shall be conducted through the American Arbitration Association and shall be
subject to and governed by the Construction Industry Arbitration Rules and Mediatioñ Procedures
as setforth by the American Arbitration Association. The locale of any arbitration that takes place
shall be Nassau County, New York. In the event of arbitration arising out of this subcontract, the
attorneys'
prevailing party shall be entitled to recover from the other party all fees, arbitration fees,
expert witness fees, and other expenses arising out of such action.
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Subcontractor Initials //1 /7
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13. Performance. Should Subcontractor failin any respect to correctly prosecute the
Work, supply required materials or failto correct defective Work promptly, or failas to any of the
Subcüñtract requirements, Contractor may perform for Subcontractor and charge all costs to
Subcontractor, provided that Contractor firstgives Subcontractor an opportunity to cure. In such
event, Contractor shall provide five (5) days written notice to Subcontractor, to cure any such
failure, except in an emergeñcy. Failure to cure or perform such Work within said five (5) day
period shall be grounds for immediate termination for cause.
14. Assignrnent. This Subcontract or any interest therein may not be transferred or
assigned, or the Work or any part thereof be subcontracted, without the prior written cüñsêñt of
both parties except that Contractor may assign this Contract to a related entity provided that the
related entity assumes allof Contractor's duties and obligations under this agreement.
15. Consequential Damages. Except as otherwise stated herein, the
Contractor and Subcontractor waive claims against each other for consequential damages arising
out of or relating to the Contract. This mutual waiver includes, but is not limited to:
15.1 Damages incurred by the Owner for rental expenses, for losses of use,
income, profit, financing, business and reputation, and for loss of
management or employee productivity or of the services of such persons;
and
15.2 Damages incurred by the Contractor or Subcontractor for principal office
expenses including the compeñsation of personnel stationed there, for
losses of financing, business and reputation, and for loss of profit except
anticipated profitarising directly from the work covered by the scope of this
Subcontract.
16. Waiver of Subrogation. AII insurance policies provided by Subcontractor shall
provide a waiver of Subrogation in favor of the Contractor and Owner. To the extent permitted by
law and by the Subcontractor's policy of insurance, Subcontractor hereby releases Contractor,
Owner and their respective insurers, their elected and appointed officials, employees and
volunteers and others working on their behalf from any and allliability or responsibility to the
Contractor or anyone claiming through or under this contract by way of subrogation or otherwise,
for any loss or damage to property caused by fire or any other casualty, even ifsuch fire or other
casualty shall have been caused by the partial fault or negligence of Contractor.
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17. Notice.
Any notices required under this Subcontract shall be provided as follows:
Notice to the Contractor shall be provided to:
NYB Builders Inc.
1803 Atlantic Avenue
Brooklyn, NY 11233
Ifthe Contractor's Notice provision above is leftblank then notice shall be provided via first class
mail to the Contractor's address as set forth on the first page of this Subcontract with a copy to
Contractor via facsimile ifContractor's facsimile number is known by Contractor. Subcontractor's
failure to actually receive such notice shall not be relevant provided that Contractor can establish
proper service of such notice in accordance with this provision.
18. Miscellaneous.
(a) Contractor shall provide Subcontractor with copies of any labor and material payment
bond issued
Preview
FILED: KINGS COUNTY CLERK 08/20/2020 05:44 PM INDEX NO. 514069/2019 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 08/20/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS - - -- - - -- - - -- - - -- - - -- - - -- - - -- - - -- - - -- - - -- - X 21ST 326 STREET LLC, Index No. 514069/2019 Plaintiff, AFFIDAVIT OF -against- YEHUDA BINIAMIN 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 STATE OF NEW YORK ) ) ss.: COUNTY OF ) Yehuda Biniamin, being duly sworn, deposes and says the following: 1. This Affidavit is submitted in support of the motion by NYB Builders Inc. ("NYB") for a default judgment against Zumba's Builders Inc. ("Zumba's"). 2. I am the President of NYB, and I have personal knowledge of the facts and 21" circumstances of certain work that NYB retained Zumba's to perform at 328 Street, Brooklyn, New York 11215 (the "Premises"). 3. NYB was the construction manager on a construction project at the Premises. On June 11, 2018, NYB executed a contract with Zumba's, as subcontractor, to perform work at {N1685141.1 ] FILED: KINGS COUNTY CLERK 08/20/2020 05:44 PM INDEX NO. 514069/2019 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 08/20/2020 the premises (the "Zumba's Contract"). A copy of the Zumba's Contract is annexed to this affidavit as Exhibit "1". 4. The Zumba's Contract was executed in the regular and ordinary course of NYB's business. 5. Pursuant to the Zumba's Contract, the scope of Zumba's work included, among other things, excavating, underpinning, and foundation work. See Exhibit 1 at Exhibit A. 6. The Zumba's Contract included a hold harmless and indemnification provision that states: To the fullest extent permitted by law, the Subcontractor agrees to indemnify, defend and hold harmless the Owner and the Contractor, as well as all parties listed below, if any, their officers, directors, agents, employees, members and partners (hereafter collectively "Indemnitees") from any and all claims, suits, attorneys' damages, liabilities, professional fees, including fees, costs, court costs, expenses and disbursements related to death, bodily injury or property damage (including loss of use thereof) brought against any of the Indemnitees by any person or entity, arising or alleged to be arising out of or in connection with or as a result or consequence of the performance of the Work of as well as additional extra or add- Subcontractor, any work, work, on work, whether or not caused in whole or in part by the Subcontractor or any person or entity employed, either directly or indirectly by the Subcontractor including any subcontractors thereof and their employees. The parties expressly agree that this indemnification agreement contemplates 1) full indemnity in the event of liability imposed against the Indemnitees without negligence; and 2) partial indemnity in the event of any actual negligence on the part of the Indemnitees either causing or contributing to the underlying claim which negligence is expressly excepted from the Subcontractor's obligation to indemnify. Attorneys fees, court costs, expenses and disbursements shall be defined without limit to include those fees, costs, etc. incurred in defending the underlying claim and those fees, costs, etc. incurred in connection with the enforcement of this Agreement. Indemnification under this Agreement shall operate whether or not the Subcontractor has placed and maintained the insurance required under this agreement. The Subcontractor shall cause all subcontract agreements it enters into to include this {N1685141.1 } FILED: KINGS COUNTY CLERK 08/20/2020 05:44 PM INDEX NO. 514069/2019 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 08/20/2020 indemnification clause so as to ensure that the Indemnitees shall have the same protection from subcontractors as all tiers as is afforded by the Subcontractor hereunder. See Exhibit 1 at Exhibit B. 7. Zumba's was also contractually obligated to obtain additional insured coverage, including primary commercial general liability insurance and excess/umbrella liability insurance, that named NYB as an additional insured. See Exhibit 1 at Exhibit B. 8. The Zumba's Contract further required Zumba's to "take reasonable means to protect allthe adjoining property and to perform and/or pay for and bear the costs of the repair or negligence." replacement to any such properties damaged or destroyed by the subcontractor's See Exhibit 1 ¶ 9. 9. In this action, plaintiff, 326 21st Street LLC, alleges that it owned an adjoining property which sustained property damages caused by, among other things, failure to underpin, 21" 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 was performed shoring 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 Amended Complaint is annexed hereto as Exhibit "2". 10. Zumba's is contractually obligated to defend and indemnify NYB with respect to plaintiff's claims. 11. Zumba's represented to NYB that itpurchased additional insured coverage for NYB from Northfield Excess & Surplus Lines ("Northfield") under policy number WH009341. {N1685141.1 } FILED: KINGS COUNTY CLERK 08/20/2020 05:44 PM INDEX NO. 514069/2019 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 08/20/2020 "3" NYB. Attached to this Affidavit as Exhibit is a copy of the tender letter and Northfield's response. 13. If Northfield continues to refuse to provide NYB with additional insured coverage with respect to Zumba's claim, then Zumba's breached itscontract with NYB by failing to provide the insurance coverage required by the Zumba's Contract. 14. NYB had no alternative but to commence this third-party lawsuit. 15. Zumba's has refused to answer the Third-Party Complaint that was filed on behalf of NYB in this lawsuit. 16. NYB has a meritorious cause of action against Zumba's in this case for contractual indemnification, common-law indemnification, contribution and breach of contract for failure to procure additional insured coverage for NYB. NYB, as third-party plaintiff, will be extremely prejudiced if a default judgment is not entered against Zumba's, as third-party defendant, in this lawsuit. 17. I have read the foregoing paragraphs and know them to be true and accurate. Dated: Brooklyn, New York August./f, 2020 Y A BINIAMIN Sworn to before me this day of August 2020 o y Public YlNY C. CASTRO Notary Public, State of New York No. 01CA6351727 Qualif.ed in Queens County CommissionExpiresDecember 12,20 (N1685141.1 ) FILED: KINGS COUNTY CLERK 08/20/2020 05:44 PM INDEX NO. 514069/2019 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 08/20/2020 EXHIBIT 1 FILED: KINGS COUNTY CLERK 08/20/2020 05:44 PM INDEX NO. 514069/2019 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 08/20/2020 SUBCONTRACT AGREEMENT made as of the 11th day of June in the year Two Thousand and Eighteen (2018) Between the Contractor: NYB Builders Inc. 1803 Atlantic Avenue Brooklyn, NY 11233 And the Subcontractor: Zumba's Builders Inc. 52nd 92-35 Avenue Elmhurst, N.Y. 11373 The Contractor has made a contract for construction with the Owner: 328 21 Street LLC For the following Project: 21st 328 Street At the Property: 21st 328 Street, Brooklyn, NY 11215 The Architect/Engineer for the Project is:InFocus DOB approved plans job number: NB: 321189682 Contractor Initials Date: Subcontractor Initials b FILED: KINGS COUNTY CLERK 08/20/2020 05:44 PM INDEX NO. 514069/2019 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 08/20/2020 Whereas the Subcontractor has reviewed the plans, specifications, conditions, and addenda to the general contract between Contractor and Owner for the Project, has visited the job site,has no reservations with regard to its duty to perform, and is bound to Contractor, the Contractor and Subcontractor agree as follows: 1. The Subcontract Documents. The Subcontract documents consist of this agreement, any project proposals issued by this subcontractor, allproject drawings, specifications and scopes of work concerning this Subcontractor's work only, which are specifically enumerated in Exhibit "A", annexed hereto, and any documents referenced in this agreement. 2. Subcontractors inspection of site conditions. The Subcontractor acknowledges that ithas carefully and thoroughly familiarized themselves with the project via visual inspection and examination of the project, the project site and the project site conditions. in the event the Subcontractor claims to encounter a previously unknown surface or subsurface physical condition at the site, itshall give immediate notice to the Contractor of such conditions within twenty four (24) hours of discovery and before the condition is disturbed so that the condition may be investigated. 3. Scope of Work. Subcontractor agrees to commence itswork within five (5) days of notification by Contractor, and to perform such work in strict accordance with the Contract Documents under the direction of Contractor in accord with Owner's requirements as reflected by the contract documents and subject to Owner's and Contractor's approval. Any changes to such work not in strict accordance with the Contract Documents must be brought to the Contractor's attention and noted in the site log. Subcontractor isto furnish all clean- material, labor, equipment, up, necessary services and warranties to fully complete the subcontract Work as described in Exhibit A attached. Developer shall pay all material expenses either directly to the Supplier or shall reimburse Subcontractor for all material expenses incurred. Any materials supplied by Subcontractor shall be new and shall meet or exceed the specifications as described in Exhibit A and any applicable state, city, town or local code, law or guideline. IfDeveloper is supplier of any or all materials, Subcontractor shall confirm that the materials meet the said applicable standards. AII materials, upon delivery, shall be inspected and warranted by Subcontractor, and thus incorporated into the project, unless Subcontractor rejects said materials, in a writing delivered to the Contractor, before the end of business on the day of delivery. Failure to reject the materials in a timely manner shall be deemed a waiver by Subcontractor of any claim against Contractor or Owner that the materials were defective or deficient in any way and any defects of deficiencies in materials that are not rejected are the sole responsibility of Subcontractor. AII of Subcontractor's work must comply with any and allapplicable codes, laws, rules and regulations. Where any code, law rule or regulation conflicts, the higher standard shall be met. Additionally, all warranties which Subcontractor is to provide pursuant to the contract specifications shall commence when the entire project is accepted by the Owner, shall be for not less of a term and duration than the Contract is obligated to provide to consumers pursuant to New York General Business Law Section 777-A, and will be in force as described in Exhibit A attached unless a 2 Contractor Initials Date: Subcontractor Init FILED: KINGS COUNTY CLERK 08/20/2020 05:44 PM INDEX NO. 514069/2019 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 08/20/2020 manufacturer warranty applies for a longer period, in which case the longer manufadurer warranty shall control. 4. Subcontractor Sum and Payments. Contractor agrees to pay Subcontractor the sum of One Hundred Sixty Seven Thousand ($167,000.00) Dollars and Zero Cents in accordance with the payment schedule as described in Exhibit A attached as payment for timely completion of itsSubcontractor Work. All fees and taxes, including alluse taxes, freight, insurances, material costs, fabrication costs, debris removal arising out of Subcontractor's work, dumping/refuse fees, cost of performing the scope of work, supervision costs, inspections performed by Subcontractor, licensing and permits, but limited to crane permit only, to perform the scope of work are included in the Subcontract price. IfContractor is paid by Owner forthe increased costs in material of any kind, including, but not limited to, concrete, steel, fuel or petroleum based products or increases in insurance, permit or dumping/refuse fees, then the Contractor shall pay same to subcontractor. Said progress payments are to be made as follows: (a) Periodic progress payments shall be made to Subcontractor for work performed if in conformity with the plans, specifications, and subcontractor's proposal, including such changes as approved by Owner and Contractor's representative within thirty (30) days from approval of Subcontractor's work by the architect or other Owner's representative. Determinations of percentages of completion and substantial completicñ to be made and verified by the Contractor. Ten percent (10%) shall be withheld from each payment as retainage. The Contractor may reduce the percentage or retainage as Contractor, in itssole discretion, reasonably deems appropriate. (b) Final Payment of Balance due. Final payments shall be made when the terms of completion defined in Exhibit A are made and in accordance with the time frames set forth in Exhibit A. 5. Schedule. Subcontractor agrees to complete the scope of work of this subcontract as described in Exhibit A attached, subject to adjustment for change orders. Subcontractor shall provide Contractor with scheduling information for Subcontractor's work and comply with Contractor's schedule as may be revised by Contractor while the work progresses. Additional monetary compensation arising out of any revised schedule, including design issues, shall be determined by Change Orders. The Subcontractor must provide Contractor written notice of any request for an extension of time within two (2) working days of when itknows of the need for such time extension with a description of its impact on the job. 3 Contractor Initials Date: Subcontractor Initials/ FILED: KINGS COUNTY CLERK 08/20/2020 05:44 PM INDEX NO. 514069/2019 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 08/20/2020 6. Changes and Additions. Claims for possible extra or additional work may be permitted only upon prior written change order signed by the contractor. Prior to the commencement of any change or additional work the subcontractor must submit promptly to the contractor a written change order setting forth the scope of work of the proposed change/addition, and the proposed costs and the change order must be sigñed by the contractor prior to the commencement of the work. In no event shall Contractor or its agents direct subcontractor to perform extra or additional work without first issuing a written change order signed by the Contractor, and in such regard, Subcontractor shall not be required to perform any extra or additional work without firstreceiving such a written change order unless such work is directed by the Contractor in the field as a result of an emergency condition where there is no a reasonable opportunity to reduce the field directive to a written change order. 7. Insurance. Prior to starting work, Subcontractor, at its expense shall obtain and maintain in force, on all operations, insurance in accordance with Exhibit B. The policies of insurance shall be in such form and shall be issued by such company and duly licensed by the State of New York. Contractor and Owner shall be added as an additional insured to each policy, certificate and endorsement. Subcontractor shall provide a certificate of insurance and endorsement to Contractor to evidence policies. Contractor shall receive at least thirty (30) days notice of any proposed cance"etioñ due to non-payment of premiums by Subcontractor. (a) Within two (2) days of executing this agreement, Subcontractor shall provide contractor with a full and complete copy of its commercial general liability insurance policy then in place. Contractor may, within two (2) days of receiving such policy from Subcontractor, cancel this Agreement without penalty if it determines that the policy does not comply with the requirements of this agreement. Nothing herein shall oblige the Contractor to review the Policy or excuse Subcontractor's non-compliance with the terms of this Contract by providing a Policy that is non-compliant. (b) Subcontractor represents and warrants that the insurance policy that it presents to contractor will be a true, accurate and fullcopy of the insurance policy and recognizes that Subcontractor's representations are being relied upon by the Contractor in executing this Contract and but for Subcontractor's representations this Contract would not be executed by the Contractor. (c) Subcontractor represents that itwas truthful and honest in any applications it submitted to its insurance carrier in connection with its obtaining of an insurance policy and recognizes that Subcontractor's representations are being relied upon by the Contractor in executing this Contract and but for Subcontractor's representations this Contract would not be executed by the Contractor. (d) Subcontractor's policy of insurance must contain a provision providing that it 4 Contractor Initials Date: Subcontractor Initials f1 FILED: KINGS COUNTY CLERK 08/20/2020 05:44 PM INDEX NO. 514069/2019 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 08/20/2020 covers Subcontractor's contractual liability. If Subcontractor's policy of insurance provides coverage for contractual liability only in the event that such contract" liability arises out of an "insured then such definition of "insured contract" in the policy must include a provision such that this agreement as contract" written would qualify as an "insured under the Subcontractor's policy. (e) Subcontractor's policy of insurance must not include an employer's liability exclusion unless: (i)such exclusion is not applicable liabilityarising out of an contract" "insured contract"; and (ii)this agreement qualifies as an "insured under the Subcontractor's policy. (f) Any violation of this Section 7 by Subcontractor shall be immediate grounds for Contractor to terminate this agreement for cause. 8. Damage to Work. All loss or damage to Subcontractor's Work resulting from any cause whatsoever shall be borne by Subcontractor and shall be solely at its risk until installed, but Subcontractor shall have the right to seek indemnification or make such other claims against the party responsible for such damage. During the Subcontract term, Subcontractor shall, at its sole expense, properly protect its own employees, laborers, materialmen, agents, materials, suppliers, tools and equipment against any damage, injury, destruction, theft or loss and in no event shall Contractor be liable or responsible therefore, unless caused by Contractor's conduct. Subcontractor shall at its own cost and expense promptly repair or replace damage to work of others, or to the Project, resulting from itsnegligent activities. 9. Damage to neighboring and/or Adjoining Property. The Subcontractor is required to take reasonable means to protect allthe adjoining property and to perform and/or pay for and bear the costs of the repair or replacement to any such properties damaged or destroyed by the subcontractor's negligence. The Subcontractor assumes allliability and holds this Contractor and the owner harmless from any damage caused to any adjoining or neighboring property which is caused by or resulting from the Subcontractors negligence. (a) Ifthe Subcontractor's scope of work includes any underpinning or excavation work, and such project is within the City of New York, then Subcontractor represents and warrants that itis familiar with the following sections of the New York City Building Code: §1704.19, §3309.2 and §3309.5. Subcontractor agrees that should it be required to obtain any license required under §3309.2 then it shall solely bear the costs of obtaining such license and shall not look to the Contractor or the Owner for reimbursement of any costs associated with obtaining a license under §3309.2. (b) Ifthe Subcontractor's scope of work includes any underpinning or excavation work, then Subcontractor represents and warrants that its general liabilityinsurance policy movement" does not contain any exclusions for "earth or for damage arising out of the performance of excavation or underpinning activities. 5 Contractor Initials Date: Subcontractor Initials fd- FILED: KINGS COUNTY CLERK 08/20/2020 05:44 PM INDEX NO. 514069/2019 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 08/20/2020 10. Compliance with Law and Safety. All work to be furnished by Subcontractor must strictly comply with all applicable federal, state and local laws, regulations, statutes, ordinances and directives (hereinafter "Laws") now in force and hereafter in effect. All work, labor, services or materials necessary to comply with said Laws shall be furnished by Subcontractor without additional compensation. Subcontractor shall comply with allapplicable safety laws, including, but not limited to, New York Labor Law §§ 240 and 241, the New York City Construction Code, the New York City Fire Code, National Fire Protection Association guidelines, New York City Department of Environmental Protection rules and regulations, New York City and State Department of Transportation rules and guidelines, and with any reasonable safety standards which may be established during the progress of the Work by the Contractor. Ifrequested, Subcontractor shall submit a safety plan for review by Contractor. When ordered, either orally or in writing, Subcontractor shall stop any part of the Work which Contractor reasonably and in good faith deems unsafe until corrective measures satisfactory to Contractor deems have been taken. IfContractor's stopping of Subcontractor's work isfound not reasonable or not in good faith, Contractor shall be responsible for costs incurred by the Subcontractor arising out of the Contractor's actions. Subcontractor may be terrhiñated for cause days' with three (3) notice due to itsfailure to take such corrective measures. Subcontractor shall be responsible for any incident due to Subcontractor not meeting the applicable safety requirements, resulting in Subcontractor's default. Subcontractor shall be responsible for any violations or penalties issued to Developer or Contractor due to Subcontractor's lack in meeting the application safety requirements, resulting in Subcontractor's default. Subcontractor also shall timely submit copies of allaccident or injury reports to Contractor not less than two (2) days after Subcontractor learns of any accident or injury regardless of whether Subcontractor believes Subcontractor and/or Contractor may not have any liabilityfor such accident or injury. 11. Choice of Law and attorney's fees. This agreement shall be construed and governed by the laws of New York. Subject to paragraph 12 below, the venue of any proceeding related to this Subcontract shall be in the Supreme Court of the State of New York, in the County of Queens unless venue in another county is required by law and in that case the county of venue shall be the county required by law. In the event of litigation arising out of this subcontract, the prevailing party shall be entitled to recover from the other party allattorney's fees, court costs, expert witness fees, and other expenses arising out of such action. 12. Arbitration. At the sole discretion of the Contractor, any dispute arising out of this subcontract may be submitted to binding arbitration. Ifthe Contractor does elect arbitration then the arbitration shall be conducted through the American Arbitration Association and shall be subject to and governed by the Construction Industry Arbitration Rules and Mediatioñ Procedures as setforth by the American Arbitration Association. The locale of any arbitration that takes place shall be Nassau County, New York. In the event of arbitration arising out of this subcontract, the attorneys' prevailing party shall be entitled to recover from the other party all fees, arbitration fees, expert witness fees, and other expenses arising out of such action. 6 Contractor Initials Date: Subcontractor Initials //1 /7 FILED: KINGS COUNTY CLERK 08/20/2020 05:44 PM INDEX NO. 514069/2019 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 08/20/2020 13. Performance. Should Subcontractor failin any respect to correctly prosecute the Work, supply required materials or failto correct defective Work promptly, or failas to any of the Subcüñtract requirements, Contractor may perform for Subcontractor and charge all costs to Subcontractor, provided that Contractor firstgives Subcontractor an opportunity to cure. In such event, Contractor shall provide five (5) days written notice to Subcontractor, to cure any such failure, except in an emergeñcy. Failure to cure or perform such Work within said five (5) day period shall be grounds for immediate termination for cause. 14. Assignrnent. This Subcontract or any interest therein may not be transferred or assigned, or the Work or any part thereof be subcontracted, without the prior written cüñsêñt of both parties except that Contractor may assign this Contract to a related entity provided that the related entity assumes allof Contractor's duties and obligations under this agreement. 15. Consequential Damages. Except as otherwise stated herein, the Contractor and Subcontractor waive claims against each other for consequential damages arising out of or relating to the Contract. This mutual waiver includes, but is not limited to: 15.1 Damages incurred by the Owner for rental expenses, for losses of use, income, profit, financing, business and reputation, and for loss of management or employee productivity or of the services of such persons; and 15.2 Damages incurred by the Contractor or Subcontractor for principal office expenses including the compeñsation of personnel stationed there, for losses of financing, business and reputation, and for loss of profit except anticipated profitarising directly from the work covered by the scope of this Subcontract. 16. Waiver of Subrogation. AII insurance policies provided by Subcontractor shall provide a waiver of Subrogation in favor of the Contractor and Owner. To the extent permitted by law and by the Subcontractor's policy of insurance, Subcontractor hereby releases Contractor, Owner and their respective insurers, their elected and appointed officials, employees and volunteers and others working on their behalf from any and allliability or responsibility to the Contractor or anyone claiming through or under this contract by way of subrogation or otherwise, for any loss or damage to property caused by fire or any other casualty, even ifsuch fire or other casualty shall have been caused by the partial fault or negligence of Contractor. 7 Contractor Initials Date: Subcontractor Initials FILED: KINGS COUNTY CLERK 08/20/2020 05:44 PM INDEX NO. 514069/2019 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 08/20/2020 17. Notice. Any notices required under this Subcontract shall be provided as follows: Notice to the Contractor shall be provided to: NYB Builders Inc. 1803 Atlantic Avenue Brooklyn, NY 11233 Ifthe Contractor's Notice provision above is leftblank then notice shall be provided via first class mail to the Contractor's address as set forth on the first page of this Subcontract with a copy to Contractor via facsimile ifContractor's facsimile number is known by Contractor. Subcontractor's failure to actually receive such notice shall not be relevant provided that Contractor can establish proper service of such notice in accordance with this provision. 18. Miscellaneous. (a) Contractor shall provide Subcontractor with copies of any labor and material payment bond issued