Preview
FILED: KINGS COUNTY CLERK 12/20/2019
12/02/2021 02:56
04:42 PM INDEX NO. 519788/2018
NYSCEF DOC. NO. 44
81 RECEIVED NYSCEF: 12/20/2019
12/02/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
Board of Managers of the City View Condominium Index Number:
As Agent for the Unit Owners
519788/2018
Plaintiff
Against THIRD PARTY SUMMONS
Val-Hugh Capital Corp. and Michelle McHugh
As Executrix for the Estate of Michael McHugh
Def endants
Val-Hugh Capital Corp. and Michê||ê McHugh
As Executrix for the Estate of Michael McHugh
Third Party Plaintiffs
Against
Gerald J Caliendo , Gerald J Caliendo RA PC, Ekistics Development
Corp, Georgios Georgiadis, Oscar P Walters, Demerara Eng|ñéEring PLL
Third Party Defendants
TO THE ABOVE NAMED DEFENDANTS:
YOU ARE HEREBY SUMMONED to appear in the Supreme Court of the State of New York, County of
Kings at the office of the Clerk of the said Court located at 360 Adams St #4 Brooklyn NY11201 in the
City and State of New York, within the time provided by the law as noted below and to fileyour answer
to the annexed verified complaint with the Clerk; upon your failureto answer, judgmêñ‡ will be taken
against you for the relief demanded in the verified complaint, together with costs of this action. 1
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175 Pinelawn Road Suite 301
Melville, NY 11747
631 547 9646
Defendants'
addresses:
Gerald R Caliendo and ·
Gerald R Caliendo RA PC
130-72 Queens Blvd
Briarwood NY 11435
Georgis Georgiadis and
EkisticsDevelopment Corp
26*
405 Ave
Astoria NY 11102
Oscar P Walters and
Demerara Engineering PLLC
228-27 Mentone Ave
Laurelton NY 11413
NOTE: The law picvided that : (a)Ifthissummons isserved by its delivery to you personally within the
City of New York, you must appear and answer within TWENTY days after such service; or (b) ifthis
summons is served by delivery to any person other than your personally, or is served outside 2
the of
City
28
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
Board of Managers of the City View Condominium Index Number:
As Agent for the Unit Owners
519788/2018
Plaintif f
Agains t THIRD PARTY COMPLAINT
Val-Hugh Capital Corp. and Michelle McHugh
As Executrix for the Estate of Michael McHugh
Defendants
Val-Hugh Capital Corp. and Michelle McHugh
As Executrix for the Estate of iv'|ichaelMcHugh
Third Party Plaintiffs
Against
Gerald J Caliendo , Gerald J Caliendo RA PC, , EkisticsDevelopment
Corp, Geõrgies Georgiadis, Oscar P Walters, Demerara Engineering PLLC
Third Party Defendants
____
Third Party Plaintiffs Val-Hugh Capital Corp. and Michellê McHugh, as Executrix for the Estate of
Michael McHugh ( collectively,"Third Party Plaintiffs") by their attorneys Ferrari & Wallace LLP, as and
for itsThird Party Complaint, alleges as follows, against Gerald R Ca||ênds, Gerald R Caliendo RA
"
PC,(together "Caliendo") and Ekistics Deve!Gpinent Corp. and Gacrg:Gs Georgiadis (together Ekistics")
and Oscar P Walters and Demerara Engineering PLLC (together "Demerara"), allcollectively, "Third
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("Offering Plan") filedwith the New York State Attorney General. The Plan was declared effective an
May 2, 2012.
2.Sponsor acquired the property on or about 2005 for the purpose of developing the CGñdaminium.
Sponsor hired professional architectural, general contracting, engiñêering, and construction design
individuals and firms to actively oversee and partake in the design, fabrication and construction of the
Building ( the "Project"). The final certificate of occupancy was issued by the New York City Department
of Buildings on June 8, 2016 and closings for the condominium units commêñced August 2016 and were
completed in December 2016. Michael McHugh, the sole shareholder of the Sponsor died May 16, 2018.
3.The under|ying action was filedby plaintiff,the Board of Managers of City View Condominium (the
"Board") by the service of a summons on or about October 2018 . The Board thereafter filed a Verified
Complaint on or about NGvember 26, 2018. The Board recently filedan Amended Complaint on or about
July 3, 2019 and served same upon Third Party Plaintiff on or about September 3, 2019 ("Amêñded
Complaint")
4.The underly|ñg premise of the Amended Complaint, albeit denied by Sponsor, is thatdesign and
construction defects allegedly exist in the building.
5.In connection with the design and construction of the Building, Sponsor delegated exclusive
responsibility to, among others, Third Party Defendants, who were the principal design and construction
professionals actively engaged in the Project.
6.The Amended Complaint assert causes of action against the Sponsor alleging that construction and
design defects exist in the Building that are solely based upon Sponsor's status as the Sponsor pursuant
to the Offering Plan. As such, in the unlikely event that Sponsor or the Estate of Michael McHugh is
found to have to
liability the Board, itis vicarious only, and the Third Party Defendants must be required
to answer to the Board for any damages awarded against the Third Party Plaintiffs.
JURISDICTION AND VENUE
7.Jurisdiction and venue in this Court isproper since the Third Party Defendants were each involved with
the architecture, construction, engiñêêring or design of the Building and the work, labor and services of
the Third Party Defendants were performed in theState of New York, County of Kings.
THE PARTIES AND THElR INVOLVEMENT IN THE PROJECT
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8.Upon information and at allrelevant Third Defendant Gerald R. Caliendo was and
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10.Upon information and belief, Gerald R Caliendo is aNew York licensed and registered architect, the
principal of Gerald R Caliendo RA PC, and the individual that actually prepared the plans and
specifications for the Building and was responsible for filingwith the Department of Buildings all
modifications, amendments, updates and corrections related to the design and construction of the
Building required to obtain the Final Certificate of Occupancy.
11. Gerald R Caliendo and Gerald R Caliendo RA PC (the "Caliends Defendants") were the Architect of
Record for the Project from inception to completion. All architectural services were delegated by
Sponsor to the Caliendo Defendants.
12.Upon information and belief, at allrelevant times, Third Party Defendant Ekistics Development Corp
is a General Contracting firm licensed in the City and State of New York with principal offices located at
26*
405 Avenue, Astoria NY 11102. Upon further information and belief,Ekistics Develcpment Corp was
and is adomestic corporation organized and existing pursuant to the laws of the State of New York.
13.Upon information and belief, Georgios Georgiadis was the principal of Ekistics Development Corp
and the individual that actually performed the general contracting work required to construct the
Building.
14.Ekistics Development Corp was the General Contractor forthe Project from inception to corñpletion.
All construction services were delegated by Sponsor to Ekistics Development Corp and itsprincipal Third
Party Defendant Georgios Georgiadis, holder of the New York CityGeneral Contractor license.
15.Upon information and belief, at allrelevant times, Third Party Defendant Demerara Engineering
PLLC was and stillisan eñgiñeering firm licensed in the City and State of New York with principal
offices located at 228-27 Mentone Ave. Laurelton NY 11413. Upon further information and belief,
Demerara Engineering PLLC was and isa domestic professional corporation organized and existing
pursuant to the laws of the State of New York. Upon information and belief, Third Party Defendant
Oscar P Walters isa Professional Engineer and principal of Demerara Engineering PLLC.
16.Oscar P Walters and Demerara Engiñêêring PLLC were the êñgineers of record for the Project and, in
addition to other engineering duties, created and executed the Description of Property and
Specifications and Certification included in Part liof the Offering Plan. Allservices related to the
eng|ñeering of the Project and the creation of this section of the Offering Plan were delegated to the
Demerara.
17.Exclusive for the performance of allof the respective essential
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responsibility architectural,
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FIRST CAUSE OF ACTION
(Common Law Indemnification from Third Party Defendants)
19.Third Party Plaintiffsrepeat and reallege the allegations contained in the foregoing paragraphs as
though fullyset forth herein.
20.In connection with the design, eñgiñeering and construction of the Building, Sponsor delegated
exclusive responsibility to, among others, the Third Party Defendants, who were the principal design
engineering and construction professionals actively engaged in the Project.
21.Based upon thisrelationship, in the event the Board recovers a judgment against the Sponsor or
Sponsor becomes obligated to pay damages arising from or in connecticñ with the allegations set forth
in the Amended Complaint, such liability,
by operation of law or otherwise, will have been caused and
brought about by the culpable conduct of the Third Party Defendants and willnot have been caused by
any culpable conduct on the part of the Sponsor.
22.Accordingly, the Third Party Defendants are liableto Sponsor, and Sponsor isentitled to comniun law
indemnification from the Third Party Defendants in the fullamount of any judgment or verdict rendered
against sponsor in cannection with the Project or the allegations contained in the Amended Complaint
attorneys'
by the Board or any other party, together with allcosts, disbursements and fees and such
other relief as thiscourt deems due.
SECOND CAUSE OF ACTION
(Contribution from Third Party Defendants)
23.Third Party Plaintiffsrepeat and reallege the allegations contained in the foregoing paragraphs as
though fullyset forth herein.
24.In connection with the design, engineering and construction of the Building, Sponsor delegated
exclusive respansibility to, among others, the Third Party Defendants, who were the principal design,
engineering and construction professionals actively engaged in the Project.
25.Based upon thisrelationship, ifthe damages alleged by the Board in the Amended Complaint were
caused by the culpable conduct of any party, such culpable conduct was that of Third Party Defendants.
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27.AccGiding|ÿ, the Third Party Defendants are liableto Sponsor, and Sponsor isentitled to contribution
from the Third Party Defendants in accordance with their relative culpability, for any judgment or
verdict rendered against Sponsor in ceññêction with the Project or the allegations contained in the
Amended Complaint by the Board or any other party, tügether with allcosts, disbursements and
attorneys'
fees and such other relief as this court deems due.
THIRD CAUSE OF ACTION
(Breach of Contract and Contractual Indemnification)
28.Third Party Plaintiffs repeat and reallege the allesoilons contained in the foregoing paragraphs as
though fully set forth herein.
29.Pursuant to various agreements, both written and oral ("Contracts") and at allrê|êvant times, the
Third Party Deféñdants performed architectural, construction, engineering and design services for
Sponsor in connection with the Project.
30.In connection with the design, engineering and construction of the Building, sponsor delegated
exclusive responsibility to, among others, the Third Party Defendants, who were the principal design,
engineering and construction professionals actively engaged in the Project.
31.Pursuant to the Contracts, the Third Party Defendants agreed to perform their services in a
workmanlike manner and deliver said services without defect or damage.
32.Third Party Defendants agreed to indemnify and hold harrñless Sponsor from alllosses arising from
their failure to properly perform their duties in connection with the work perfõrmed on the Project.
33.Accordingly, ifthe Board or any other party recovers damages against the Sponsor in cüññéction with
the Project or the allegations of the Amendêd Complaint, Third Party Defendants are obligated for said
damages related to their Breach of Contract, and are obligated to indemnify and hold harmless Sponsor,
pursuant to the contracts for any and alllosses and damages.
WHEREFORE, Third Party Plaintiffdemands judgment against Third Party Defendants as follows:
On the FirstCause of Action, for common law iñdemnification from the Third Party Defendants
together with attorneys fees, costs and disbursements; and
On the Second Cause of Action, for contribution from the Third Party Defendants, together
7 of with
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December 20 , 2019 Yours,
FERRARI & CE LLP
/'
By:
JOAN FERRARI, ESQ
Attorneys for the Third Party Plaintiffs
175 Pinelawn Road suite 301
Mé|vil|è NY 11747
631 547 9646
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VERIFICATION
STATE OF NEW YORK
COUNTY OF SUFFOLK
MICHELLE MCHUGH, being duly sworn deposes and
says
I am the executrix of the Estate of Michael McHugh, the Estate
that is the party to the within action as well as the Executrix of
the of Michael the sole shareholder of Val-
Estate McHugh,
Hugh Capital Corp, a party
to the within action; I have read the
foregoing Third
Party
Complaint and know the contents
thereof; and the same is true to
my own knowledge, except as to
matters stated to be alleged upon information and belief, and as
to those matters I believe it to be true.
Michelle McIfugh
Sworn to before me this
day of
, 2019
C
No.o2pg4 Nenot
Commissio \kCounty
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COMPLAINT
"A"
EXHIBIT
AMENDED
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
BOARD OF MANAGERS OF THE CITY VIEW
CONDOMINIUM, AS AGENT FOR THE UNIT Index No.: 519788/2018
OWNERS .
Plaintiff, VERIFIED AMENDED
COMPLAINT
- against -
VAL-HUGH CAPITAL CORP. and MICHELLE
MCHUGH as Executrix for THE ESTATE OF MICHAEL
MCHUGH,
Defendants.
Plaintiff BOARD OF MANAGERS OF THE CITY VIEW CONDOMINIUM, AS
AGENT FOR THE UNIT OWNERS (the "Board"), by and through its attorneys, Spolzino Smith
Buss & Jacobs, LLP, as and for itsVerified Complaint against Defendants VAL-HUGH CAPITAL
CORP. (the "Sponsor") and MICHELLE MCHUGH as Executrix for THE ESTATE OF
MICHAEL MCHUGH ("McHugh Estate"), alleges as follows:
PARTIES
1. Plaintiff Board of Managers of the City View Condominium, as Agent for the Unit
Owners, is a condominium duly organized and existing pursuant to Article 9-B of the Real Property
Law of the State of New York (the "Condominium Act"), and is located at 185 York Street,
Brooklyn, New York 11201.
2. , The Board is the duly elected governing body of the Conderinium 11 and
of is
28
.
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3. Upon information and belief, Defeñdañt Val-Hugh Capital Corp. is a New York
Corporation with a principal place of business at 175 Pinelawn Road, Suite 400, Melville, New
York 11747.
4. Upon information and belief Defendant McHugh Estate is the estate of Michael
McHugh ("McHugh"), a natural person who resided at 344 Shore Road, Oakdale, New York
11769, prior to his death on or about May 16, 2018.
5. Upon information and belief, prior to his death on May 16, 2018, McHugh was the
sole shareholder and principal of the Sponsor.
6. Upon inferrñation and belief, Michelle McHugh is a natural person who is the
widow of McHugh, resides at 344 Shore Road, Oakdale, New York 11769, and serves as the
Executrix of the McHugh Estate.
NATURE OF ACTION
7. This is an action for money damages and equitable relief for fraud, breach of
contract, breach of warranty (expmss and implied), breach of fiduciary duty and negligence arising
Defendants'
from construction of the Condo-ddsñ building located at 185 York Street, Brooklyn,
New York (the "Building") in a manner that did not conform to the offering plan, the architectural
plans, applicable building codes, and professional construction practices. Defendants had
knowledge of the nonconforming conditions, concealed them and failed to correct them.
Defand ws thereafter controlled the Condomidum's board of managers and intentionally,
knowingly, recklessly, ñegligeñtly and frandúlently failed and refused to coñdüct appropriate
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BACKGROUND FACTS
8. The City View Condominium consists of 16 residential units (the "Residential
Units") and one non-residential commercial unit, along with seven parking units (together with the
Residential Units and non-residential unit, the "Units"), and the common elements as defined in
the Declaration and By-Laws of the Condominium, including. the exterior walls and roofs of the
Building.
9. The Sponsor was the sponsor of the offering of Condominium Units to the public
pursuant to an offering plan (as amended, the "Plan") filed with the New York State Office of the
Attorney General on December 29, 2010, and was subsequently amended twelve (12) times, the
last of which is dated October 31, 2016.
10. Upon information and belief, the Declaration of Condominium estabHshing the
Condominlen was recorded in the Office of the City Register of New York City on September 11,
2012 as CRFN #2012000357108.
11. According to the Plan, McHugh was the principal and sole shareholder of the
Sponsor at alltimes relevant herein.
OFFERING PLAN REPRESENTATIONS
12. In accordance with Section 20 of the regulations issued pursuant to General
Business Law Article 23-A, as amended, the Sponsor and McHugh, individually, made various
sworn representations and certifications relating to the Plan under penalty of perjury.
13. The Sponsor and McHugh represented in the Plan that the "Sponsor will 13 of
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14. The Plan included a description of the property and the planned improvements
prepared by the Sponsor's engineers, Demerara Engineering, PPLC, and signed by Oscar P.
Walters, P.E., based on plans prepared by a licensed architect, the office of Gerald J. Caliendo,
R.A., A.I.A. The Sponsor adopted the description of the property and incorporated itinto the Plan.
15. The Plan included floor plans of each Unit as well as the roof and basement.
16. Pursuant to the Sponsor's Certification contained in the Plan, the Sponsor and
McHugh, individually, jointly and severally certified that:
"The offering plan does, and that documents submitted hereafter by us which amend or
supplement the offering plan will:
1. set forth the detailed terms of the transaction and be complete, current and accurate;
2. afford potential investors, purchasers and participants an adequate basis upon
which to found their judgment;
3. not omit any material fact;
4. not contain any untrue statement of a material fact;
5. not contain any fraud, deception, concealment, suppression, false preteñse or
fictitious or pretended purchase or sale;
6. not contain any promise or representation as to the future which is beyond
reasonable expectation or unwarranted by existing circumstances;
7. not contain any representation or statement which is false where we:
(a) knew the truth;
(b) with reasonable effort could have known the truth;
(c) inade no reasonable effort to ascertain the truth; or
(d) did not have knowledge concerning the representations or statement
made."
17. Each of the Condominium's unit owners (the "Unit Owners") purchased his or her
Unit pursuant to a purchase agreement with the Sponsor that was substantially the same as a form
of purchase agreement included in Part II of the Plan (the "Purchase Agreement"). 14 of 28
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including all attachments, was incorporated into the Purchase Agreement by reference as if fully
set forth therein; and (iv) in case of any conflict between the Purchase Agreement and the Plan,
the Plan controls.
19. The Sponsor and McHugh stated in the Fourth Amendment that the construction of
the Condominium was substantially completed in 2013, though substantial work was done through
at least 2015.
20. Upon information and belief, the Sponsor closed its first Unit sale in the
Condominium in or around August 2016.
21. The Sponsor also designated the Board of Managers of the Condominium to be
comprised solely of principals or affiliates of the Sponsor.
DESIGN AND CONSTRUCTION DEFECTS
22. McHugh, individually and as the principal of the Sponsor, and/or his agents were
present at the site with regular frequency throughout construction and worked closely with the
general contractor and the architect.
23. Upon information and belief, McHugh was also the principal of the general
contractor that constructed the Building.
24. Upon information and belief, shortly after taking possession of their Units, Unit
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FISCUS vs. PATTERSON, et al.
Jul 10, 2024 |
CVCV22-0199210
FISCUS VS. PATTERSON, ET AL.
Case Number: CVCV22-0199210
Tentative Ruling on Motion to Continue Trial Date: This matter involves multiple parties and Cross-
Complaints. Plaintiff is Paula Fiscus. Defendant/Cross-Defendants/Cross-Complainants Gregory G. Gonzales
and Marcia J. Gonzales, Trustees of the Greg and Marcia Gonzales Family 2014 Revocable Trust will be referred
to as the Gonzales Defendants. James Patterson and Patterson Landscape/Yard Manicurist Agency will be
referred to as the Patterson Defendants. The Gonzales Defendants have filed a Motion to Continue the presently
set August 20, 2024, trial date. The Patterson Defendants have joined the motion. Plaintiff has opposed the
motion. Defendant American Contractors Indemnity Company has not filed anything related to the motion and
did not attend the ex parte hearing on June 27, 2024, at which time was shortened to hear the motion today instead
of July 22, 2024, as originally noticed. There is no evidence that the Gonzales Defendants provided notice of
today’s hearing to Defendant American Contractors Indemnity Company. Cross-Defendant Mark Behnke
Construction has also not filed anything related to the motion but did attend the ex parte hearing and is therefore
aware of today’s hearing.
Merits. “To ensure the prompt disposition of civil cases, the dates assigned for a trial are firm. All parties and
their counsel must regard the date set for trial as certain.” CRC 3.1332(a). “Although continuances of trials are
disfavored, each request for a continuance must be considered on its own merits. The court may grant a
continuance only on an affirmative showing of good cause requiring the continuance.” CRC 3.1332(c).
Circumstances that may indicate good cause are:
(1) The unavailability of an essential lay or expert witness because of death, illness, or other
excusable circumstances;
(2) The unavailability of a party because of death, illness, or other excusable circumstances;
(3) The unavailability of trial counsel because of death, illness, or other excusable circumstances;
(4) The substitution of trial counsel, but only where there is an affirmative showing that the
substitution is required in the interests of justice;
(5) The addition of a new party if:
(A) The new party has not had a reasonable opportunity to conduct discovery and prepare for trial;
or
(B) The other parties have not had a reasonable opportunity to conduct discovery and prepare for
trial in regard to the new party's involvement in the case;
(6) A party's excused inability to obtain essential testimony, documents, or other material evidence
despite diligent efforts; or
(7) A significant, unanticipated change in the status of the case as a result of which the case is not
ready for trial.
CRC 3.1332(c).
When considering whether to grant a motion to continue, there are several factors that the Court must consider
including:
(1) The proximity of the trial date;
(2) Whether there was any previous continuance, extension of time, or delay of trial due to any
party;
(3) The length of the continuance requested;
(4) The availability of alternative means to address the problem that gave rise to the motion or
application for a continuance;
(5) The prejudice that parties or witnesses will suffer as a result of the continuance;
(6) If the case is entitled to a preferential trial setting, the reasons for that status and whether the
need for a continuance outweighs the need to avoid delay;
(7) The court's calendar and the impact of granting a continuance on other pending trials;
(8) Whether trial counsel is engaged in another trial;
(9) Whether all parties have stipulated to a continuance;
(10) Whether the interests of justice are best served by a continuance, by the trial of the matter, or
by imposing conditions on the continuance; and
(11) Any other fact or circumstance relevant to the fair determination of the motion or application.
CRC 3.1332(d).
The reasons presented by the Gonzales Defendants to continue the trial are that trial counsel has a conflicting trial
schedule and because Marcia Gonzales’s son is getting married the week of trial. In the moving papers, the
Gonzales Defendants note that the wedding date was set prior to the Court setting the Augst 20, 2024 trial date.
The reasons for the Patterson Defendants joining the motion are because counsel has a conflicting trial schedule,
counsel is moving homes in late August, and because the Pattersons have a prepaid vacation from August 26-
September 6, 2024. It is not clear whether the Pattersons’ vacation was set and prepaid when the Court set the
trial date of if the Pattersons planned it after the trial date was set. Plaintiff opposes the continuance on the grounds
that Defendants have failed to show good cause for the continuance, and because Plaintiff will be prejudiced by
a continuance. The prejudice alleged is that a later trial would not allow time for necessary remediation of the
landscaping issues before the next rainy reason. These issues have resulted in significant erosion and flooding.
Plaintiff also argues that the parties stipulated to the August 20, 2024, trial date and all agreed that no further
continuances would be granted absent stipulation. While this agreement did not make it into the Court’s Order
dated April 10, 2024 (which was submitted by the Patterson Defendants), it is clear from the Stipulation that the
parties did reach such a stipulation.
Conflicting trial schedules do not automatically create good cause to continue a trial. Trial counsel regularly have
multiple trials set for the same week. Any attorney who practices in civil law is well aware that not every trial set
actually goes forward as scheduled. No good cause has been presented in that regard. As to the wedding, it
appears the counsel for the Gonzales Defendants did not check with their client prior to agreeing to a trial date.
Had they checked, surely Ms. Gonzales would have pointed out that her son was getting married that week. The
unavailability of Ms. Gonzales due to her son’s wedding may constitute an excusable circumstance under CRC
3.1332(c)(2). Similarly, the Patterson’s vacation could also be such a circumstance, depending on when it was
scheduled.
Regarding the CRC 3.1332(d) factors, the trial date is one month and twelve days away. Trial has been continued
twice before. The first was by stipulation on October 13, 2022. The second was by stipulation on April 9, 2024,
as discussed above. The Gonzales Defendants have requested a continuance to November of 2024 while the
Patterson Defendants have requested 45-60 days. The only alternative means to address the problem that gave
rise to the motion or application for a continuance would be potentially taking witnesses out of order at trial.
Plaintiff may be prejudiced by the continuance. The matter is not entitled to preferential trial setting. Regarding
the Court’s calendar, one of the two civil trial courts will be dark on the currently set date of August 20, 2024,
which reduces the chance that this matter will be assigned to a courtroom for trial. Counsel is not currently
engaged in another trial that causes a conflict and only provides evidence that there are other trials that might
affect counsel’s availability. There is no stipulation for a continuance. The parties previously agreed that no
further continuances would occur absent a stipulation.
Regarding the interests of justice, the Court is in a position of having to weigh how much counsel’s failure to
consult with their clients regarding their schedules should be permitted to affect their client on a personal level.
It is clear that counsel should have done a better job to make sure that the agreed upon trial date worked for all
parties, and not just counsel. This is particularly so when the parties explicitly stipulated that no further
continuances would take place. However, the Court does not feel that it is in the interest of justice to punish Ms.
Gonzales by potentially preventing her from participating in her son’s wedding based on counsel’s failure to
communicate properly. As to the Patterson vacation, it is unclear whether this vacation was set at the time the
trial was set or if the Pattersons scheduled their vacation later. However, the Court does understand the need for
the Pattersons to be present for the trial to present their testimony.
On balance, the Court finds that granting of a short continuance would be in the interest of justice. The Pattersons’
vacation lasts until September 6, 2024. Therefore, the Court intends to continue the trial to Tuesday, September
10, 2024. If this trial date does not work for Plaintiff, the Court will entertain the first available date for Plaintiff.
Should the trial be continued, all discovery deadlines will flow from the new trial date.
However, the Court notes that Defendant American Contractors Indemnity Company was not provided with
notice of today’s hearing. Absent an appearance by Defendant American Contractors Indemnity Company, the
Court will continue today’s hearing to July 22, 2024, at 8:30 a.m. in Department 63 as that is the date that was
originally noticed.
Ruling
TOYOTA INDUSTRIES COMMERCIAL FINANCE INC. VS AIR BOY EXPRESS, INC., A CALIFORNIA CORPORATION, ET AL.
Jul 09, 2024 |
22STCV17241
Case Number:
22STCV17241
Hearing Date:
July 9, 2024
Dept:
71
Superior Court of California
County of Los Angeles
DEPARTMENT 71
TENTATIVE RULING
TOYOTA INDUSTRIES COMMERCIAL FINANCE INC.,
vs.
AIR BOY EXPRESS, INC., et al.
Case No.:
22STCV17241
Hearing Date:
July 9, 2024
Plaintiff Toyota Industries Commercial Finance, Inc.s
unopposed
motion to amend the judgment entered on August 25, 2023, is granted.
Plaintiff Toyota Industries Commercial Finance, Inc. (Toyota) (Plaintiff) moves
unopposed
for this Court to amend the judgment in this matter entered on August 25, 2023, against Defendants
Kil H Choi aka Kil Han Choi
and
Air Boy Express, Inc.
(collectively Defendants) to remove the name of Air Boy Express, Inc., erroneously included in the Judgment as a Plaintiff on line 5.
(Notice of Motion, pg. 1; C.C.P. §473(d).)
Background
On August 25, 2023, the court granted Plaintiffs default judgment against Defendants.
Plaintiff filed multiple default judgment packets to the Court, which necessitated this Courts line edit to include
the name of Air Boy Express, Inc.
on the judgment listing Kil H Choi aka Kil Han Choi according to the one judgment rule.
However, this Court erroneously entered the name of Air Boy Express, Inc. as a Plaintiff instead of as a Defendant.
Plaintiff filed the instant motion on March 13, 2024.
As of the date of this hearing no opposition has been filed.
Motion to Amend Judgment
Legal Standard
Once a judgment is entered, trial courts lose jurisdiction to set aside or amend the judgment except in accordance with statutory procedures.
(
APRI
Insurance Co. v. Superior Court
(1999) 76 Cal.App.4th 176, 182;
Rochin v. Pat
Johnson Manufacturing Co.
(1998) 67 Cal.App.4th 1228, 1238).
However, [t]he court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order. (C.C.P. §473(d).)
Discussion
Plaintiffs motion to amend the clerical error in the judgment to remove the name of
Air Boy Express, Inc.
from line 5 as a Plaintiff and include the name of
Air Boy Express, Inc.
as a Defendant is granted.
Here, the Court made an error by placing the name of
Air Boy Express, Inc.
on the Judgment in the wrong location.
Accordingly, Plaintiffs
unopposed
motion is granted.
Conclusion
Plaintiffs
unopposed
motion to amend the judgment to remove the clerical error listing Defendant
Air Boy Express, Inc. as a Plaintiff and add the name Air Boy Express, Inc. as a Defendant
is granted.
Moving Party to give notice.
Dated:
July _____, 2024
Hon. Daniel M. Crowley
Judge of the Superior Court
Ruling
DONALD L. CRAWFORD SR. VS VERIZON COMMUNICATIONS, INC., ET AL.
Jul 10, 2024 |
24TRCV01439
Case Number:
24TRCV01439
Hearing Date:
July 10, 2024
Dept:
B
Superior Court of
California
County
of Los Angeles
Southwest District
Torrance Dept. B
DONALD L. CRAWFORD SR.,
Plaintiff,
Case No.:
24TRCV01439
vs.
RULING
VERIZON COMMUNICATIONS, INC., et al.,
Defendant.
Hearing Date:
July 10, 2024
Moving Parties:
Defendant Cellco Partnership dba Verizon Wireless (joinder by Walmart Inc.)
Responding Party:
Plaintiff Donald L. Crawford Sr.
Motion to Compel Arbitration
The Court considered the moving papers and joinder, late-filed opposition, and reply papers that was filed before the late-filed opposition.
RULING
The motion is GRANTED and the case is STAYED.
Request for judicial notice by Defendant Cellco Partnership is DENIED.
BACKGROUND
On August 30, 2024, plaintiff Donald L. Crawford Sr. (self-represented) filed a complaint against defendants Verizon Communications, Inc., Walmart, Inc., and Samsung Electronics of America, Inc. for breach of contract, products liability, and intentional tort.
LEGAL AUTHORITY
Under CCP § 1281, a written agreement to submit to arbitration an existing controversy or a controversy thereafter arising is valid, enforceable and revocable, save upon such grounds as exist for the revocation of any contract.
Under CCP § 1281.2, On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: . . .
(b) Grounds exist for rescission of the agreement. . . .
[W]hen a petition to compel arbitration is filed and accompanied by prima facie evidence of a written agreement to arbitrate the controversy, the court itself must determine whether the agreement exists and, if any defense to its enforcement is raised, whether it is enforceable.
Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a preponderance of the evidence.
If the party opposing the petition raises a defense to enforcementeither fraud in the execution voiding the agreement, or a statutory defense of waiver or revocation (see §1281.2(a), (b))that party bears the burden of producing evidence of, and proving by a preponderance of the evidence, any fact necessary to the defense.
Rosenthal v. Great Western Fin. Securities Corp.
(1996) 14 Cal. 4th 394, 413.
Petitions to compel arbitration are summary proceedings in which the court sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence.
Engalla v. Permanente Medical Group, Inc.
(1997) 15 Cal. 4th 951, 972.
Unlike a ruling on a motion for summary judgment, the Court is charged with resolving any factually disputed issues unless there is no evidentiary support for the claims of the party opposing the petition.
Id.
at 973.
DISCUSSION
Defendant Cellco Parnership dba Verizon Wireless (erroneously sued as Verizon Communications, Inc.) requests an order compelling plaintiff to binding arbitration and to stay the proceeding.
Defendant Walmart Inc. filed a joinder.
In the complaint, plaintiff alleges that on March 15, 2024, plaintiff and defendant Verizon entered into a written contract.
Plaintiff transferred his cell phone from Consumer Cellular to Verizon and received a supposedly new Samsung A-15 phone for signing up for the service.
The monthly service charge was $65 to be deducted from plaintiffs checking account.
Verizon billed plaintiff $287 the first month.
The phone was not brand new.
It was refurbished from a prior defect.
The service was to come with complete customer service.
The phone began to malfunction almost immediately.
Voicemail could not be set up; the phone jumped to mute or airplane mode without plaintiffs knowledge; and it would shut down for hours citing overheating.
It took hours and sometimes days before the phone would come back online.
Verizon techs could not fix it and recommended a replacement device.
Plaintiff has stilnot received the replacement phone.
Plaintiff suffered damages because he had no working phone and was forced to purchase a Tracphone with a different phone number.
Plaintiffs business line is disabled as well.
Plaintiff was forced to go to a third carrier, Metro PCS by T Mobile.
Plaintiff paid for service beginning April 20, 2024, but cannot use the service because Verizon locked the network despite warning from the FCC to release the line to Metro.
Existence of an agreement to arbitrate
As stated in
Cione v. Foresters Equity Services, Inc.
(1997) 58 Cal. App. 4th 625, 634 The right to arbitration depends upon contract; a petition to compel arbitration is simply a suit in equity seeking specific performance of that contract.
There is no public policy favoring arbitration of disputes that the parties have not agreed to arbitrate.
Lopez v. Charles Schwab & Co., Inc.
(2004) 118 Cal. App. 4th 1224, 1229.
Defendant Verizon Wireless argues that plaintiff agreed to resolve this dispute with Verizon Wireless through binding arbitration.
Defendant explains that on March 15, 2024, plaintiff opened a Verizon Wireless cellular service account for a mobile phone number ending in -8792.
In connection with opening the account, plaintiff executed a Service Summary.
Joseph Ninete decl., Exh. A.
The Service Summary, which references the Verizon Wireless Customer Agreement, states, in part in bold:
I agree to the VZW Customer Agreement (CA), including settlement of disputes by arbitration instead of jury trial, as well as the terms of the plan and optional services I have chosen.
I am aware that I can view the CA anytime at verizonwireless.com.
It also states on another page:
I have read and agree to the Verizon Customer agreement (CA) including settlement of dispute by arbitration instead of a jury trial . . . .
Defendant further contends that plaintiff executed an Installment Loan Agreement/Security Agreement (Payment Agreement) with Verizon Wireless for the purchase of a Galaxy A15.
Ninete decl., Exh. B.
The Payment Agreement incorporates the Customer Agreement by reference, including its arbitration provision.
The Payment Agreement also states:
Additionally, any disputes under this device payment agreement (including, without limitation, any disputes against the Seller and/or Verizon Wireless) shall be resolved in accordance with the dispute resolution provisions in your Customer Service Agreement . . . which terms are incorporated by reference.
Specifically, you and Verizon Wireless (and/or the Seller) both agree to resolve all disputes under this device payment agreement only by arbitration . . . .
The Customer Agreement states in part, in bold capitalized letters, You and Verizon both agree to resolve disputes only by arbitration. . . .
Ninete decl., Exh. C.
In the joinder, defendant Walmart argues that as discussed in length in the moving papers, plaintiffs signed contractual agreement with Verizon Wireless mandates that this claim be resolved in arbitration, and that the agreement clearly states that the seller (in this case Walmart) is equally entitled to arbitration of the agreement and for the state court action to be stayed while arbitration proceeds.
See Ninete decl., Exh. B at page 2 (Specifically, you and Verizon Wireless (and/or the Seller) both agree to resolve all disputes under this device payment agreement only by arbitration . . . .).
In a late-filed opposition, plaintiff contends that no contract exists between plaintiff and defendants because the documents are false, inaccurate, fraudulent in that said documents have [been] altered and/or photoshopped to appear that plaintiff executed the attached false and fraudulent contract.
He does acknowledge finger signing at the store.
The Court finds that defendants have met their burden of proving the existence of an arbitration agreement and that there is no evidence that the above agreements are false, inaccurate, fraudulent.
Scope
Defendants contend that the arbitration provision in the Customer Agreement is broadly worded (Any dispute that in any way relates to or arises out of this Agreement . . . .) and covers plaintiffs claims.
The Court agrees.
Enforceability
Defendant argues that the validity and enforceability of the arbitration provision in the Customer Agreement must be decided by the arbitrator, not the Court, because the arbitration provision contains an express delegation clause.
To be enforceable, the delegation clause itself must be clear and unmistakable, and not revocable under state contract defenses such as fraud, duress, or unconscionability.
Tiri v. Luck Chances, Inc.
(2014) 226 Cal. App. 4
th
231, 242.
See also
B.D. v. Blizzard Ent., Inc.
(2022) 76 Cal. App. 5
th
931, 957 (arbitration agreement clearly and unmistakably delegates question of arbitration to arbitrator by statement that the arbitration has authority to decide all issues of arbitrability).
The Court finds that the delegation clause is clear and unmistakable.
Plaintiff does not address the delegation clause or dispute it in the opposition.
The motion is GRANTED as to the claims against defendants Cellco Partnership dba Verizon Wireless and Walmart Inc.
.
ORDER
The motion is GRANTED.
The claims asserted against defendants Cellco Partnership dba Verizon Wireless and Walmart Inc are ordered to arbitration.
The case is STAYED.
Moving defendant is ordered to give notice of this ruling.
Ruling
JOHNSON, ET AL VS. PARENT, ETAL
Jul 10, 2024 |
CVCV21-0197618
JOHNSON, ET AL VS. PARENT, ETAL
Case Number: CVCV21-0197618
This matter is on calendar for review regarding status of arbitration. The Court ordered this matter to arbitration
on February 5, 2024. Neither side appeared for the prior hearing on May 3, 2024. The Court notes that
Substitutions of Attorney have been filed on behalf of Plaintiffs. An appearance is necessary on today’s
calendar to discuss the status of arbitration.
Ruling
Omar Arroyo et al. vs American Honda Motor Co., Inc., a California Corporation
Jul 09, 2024 |
STK-CV-UBC-2022-0007718
2022-7718 Mercado/Arroyo MTC Deposition of PMQ 7/10/2024 Plaintiffs Rocio Mercado and Omar Arroyo bring a Motion to Compel Deposition Attendance of Defendant’s Person Most Knowledgeable (“PMK”) and Request for Sanctions. Having read the moving papers, the opposition papers, and reply papers the court issues the following tentative ruling: On February 8, 2024, Plaintiffs properly noticed the deposition of Defendants PMK and Custodians of Records. On February 15, 2024, Plaintiffs followed up with Defendant regarding Plaintiffs’ Notice of Depositions and requested that deposition dates be provided in case Defendant’s PMK was not available on the date the deposition was scheduled. On March 2, 2024, Defendant served objections to Plaintiffs’ Notice of Deposition. On March 8, 2024, Plaintiffs’ counsel sent a meet and confer letter to defense counsel regarding defendant’s objections. In the transmittal email plaintiffs’ counsel states “WE are in receipt of your objections to the notice of deposition for AHMAC’s PMQ set for Monday, March 11, 2024 at 11:30 A.M.; however, no alternative dates were provided for the deponent. [¶] Please advise as to an alternative, mutually convenient date so we may be able to re-notice this PMQ depo accordingly. IN addition, please see the attached M&C Letter regarding categories of examination.” On March 11, 2024, at 10:47 A.M., plaintiffs’ counsel sent another email to Defense counsel. This email provided the ZOOM link for the scheduled 11:30 A.M. deposition and also the following language, “Again, if the notice date does not work for Honda or the deponent, please advise on alternate dates. [¶] In the event that your office does not provide alternative dates for t his deposition, to protect our clients’ rights we will proceed with the deposition to memorialize your failure to appear.” Neither Defense counsel nor the party deponent appeared at the properly notice deposition and a non-appearance was taken by plaintiffs’ counsel. At 5:51 P.M. on March 11, 2024, plaintiffs’ counsel sent defense counsel an email attempting to get deposition dates to obtain the deposition without court intervention. On March 15, 2024, Plaintiffs’ counsel again sought dates to obtain the deposition. On March 27, 2024, Plaintiffs’ counsel again sent an email in an attempt to get dates to take the deposition. Finally on March 27, 2024 Defense counsel responded to plaintiffs’ counsel’s inquiry. However, defense counsel did not provide dates for the deposition. Rather defense counsel stated, “We have requested availability for a PMQ to be provided as soon as possible, and will notify you as soon as a date is received.” On April 2, 2024, plaintiffs’ counsel again inquired about deposition dates. As of the time the motion was filed, Defense counsel has failed to provide available deposition dates. Trial of this matter is set for August 19, 2024, 1:30 P.M., Dept. 11B. Oral depositions are an authorized method of discovery. (See CCP §2025.010 et seq.) Serving a deposition notice on a party is the method to obtain the party’s attendance at the oral deposition. (CCP §§2025.210-2025.240 / 2025.280.) If a party fails to attend the deposition as noticed the noticing party may bring a motion to compel attendance. If the party fails to attend or proceed with the noticed deposition the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against that party, or the attorney for that party, or both, and in favor any party attending in person or by attorney, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (CCP §2025.430.) In addition, failure to submit to authorized method of discovery is a misuse of the discovery process for which monetary sanctions shall be imposed. (CCP §2023.2023.010(d) /§ 2023.030.) The Motion is GRANTED. Defendant’s PMK is ordered to sit for an oral deposition within 15 days of service of the order on Defense counsel. Defendant is to produce responsive documents at the deposition. The parties are to meet and confer to find an agreeable date, time and location for the deposition within the 15 day window. The request for monetary sanctions is granted. The court finds the hourly rate requested for associate work of $295.00, is reasonable. The court finds the hourly rate requested for Mr. Kirnos of $495.00 is reasonable. The court finds it would take approximately 3 hours of associate time and 2 hours of Mr. Kirnos time write the motion, analyze the opposition, draft a reply and attend the hearing remotely. The court finds that the monetary sanction should include the $60.00 filing fee. Therefore, the court awards $1,935.00 as discovery sanctions against Defendant and Defense counsel. Discovery sanctions payable within 30 days of service of the order. The Mandatory Settlement Conference date of July 22, 2024, 1:30 P.M., Dept. 11B, and Trial Date of August 19, 2024, 1:30 P.M., Dept. 11B, are confirmed and remain as set. WATERS 7/9/2024 Directions for Contesting or Arguing the Tentative Ruling: Tentative rulings for Law and Motion will be posted electronically by 1:30 p.m. the day before the hearing. Any party wishing to contest or argue the tentative ruling must email the court at civilcourtclerks@sjcourts.org. that they intend to appear remotely no later than 4:00 PM on the day before the scheduled hearing. The Department, Case number, Case Name, and party’s name must be in the header of the email. The email must include the Department, Case number, Case Name, Motion, party’s name and email, date and time of the hearing, issues they plan to argue, and that they have informed the opposing party. The party must also notify affected counsel, or unrepresented parties, that they intend to appear, no later than 4:00 PM on the day before the scheduled hearing. Unless the Court and opposing counsel have been notified, the tentative ruling shall become the ruling of the Court without oral argument. To conduct a remote appearance, follow the instructions below. There is a dedicated conference bridge lines for Dept. 11B. Call into dedicated conference bridge line at the time set for the hearing. To attend the remote hearing in Dept. 11B: Call into (209) 992-5590, then follow the prompts and use the Bridge # 6941 and Pin # 5564. The courtroom clerk will make announcements and the Judge will call the calendar. Please mute your phones when you are not speaking, and remember to unmute your phone when you are speaking. At this time, we are not able to provide information over the phone. To communicate with the Courtroom Clerk of Dept. 11B, please email questions to civilcourtclerks@sjcourts.org, indicating in the title of the email the Department, Case number, Case Name, and party’s name. A Courtroom Clerk will return your email. To ensure the Court has your most recent contact information, if you have not already done so, please register your email address and mobile number on the Court’s website under Online Services, Attorney Registration. (You do not have to be an attorney to register.) We thank you for your cooperation, assistance, patience and flexibility.
Ruling
MAYS vs ENNIS
Jul 11, 2024 |
CVRI2306229
MOTION TO FILE A CROSS-
CVRI2306229 MAYS VS ENNIS
COMPLAINT
Tentative Ruling:
GRANT
Cross-Complaint to be filed and served within 5 days.
Ruling
JOHN P BERNARD VS. BMW OF NORTH AMERICA, LLC ET AL
Jul 10, 2024 |
CGC23608339
Matter on the Law & Motion calendar for Wednesday, July 10, 2024, Line 8. PLAINTIFF JOHN BERNARD's Motion For Award Of Attorneys Fees, Costs, And Expenses. Off calendar for noncompliance with Local Rule 2.7(B) (courtesy copies). The motion may be re-set for a Mon.-Thurs. after July 24, with papers to bear new hearing date. In meantime, counsel shall meet and confer to resolve their differences. For the 9:30 a.m. Law & Motion calendar, all attorneys and parties may appear in Department 302 remotely. Remote hearings will be conducted by videoconference using Zoom. To appear remotely at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link, or dial the corresponding phone number. Any party who contests a tentative ruling must send an email to contestdept302tr@sftc.org with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. The text of the email shall include the name and contact information, including email address, of the attorney or party who will appear at the hearing. The court no longer provides a court reporter in the Law & Motion Department. Parties may retain their own reporter, who may appear in the courtroom or remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(302/RBU)
Ruling
JOHN P. MIDDLETON, ET AL. VS ROY LEE, ET AL.
Jul 12, 2024 |
19STCV30580
Case Number:
19STCV30580
Hearing Date:
July 12, 2024
Dept:
20
Tentative Ruling
Judge Kevin C. Brazile
Department 20
Hearing Date:
July 12, 2024
Case Name:
Middleton, et al. v. Lee, et al.
Case No.:
19STCV30580
Matter:
Motion to be Relieved as Counsel
Moving Party:
Marc Rohatiner, counsel for Plaintiffs John P. Middleton and The John
Powers Middleton Companies, LLC
Responding Party:
Unopposed
Notice:
OK
Ruling:
The Motion is granted.
Moving party to give notice.
If counsel do not submit on the tentative, they are strongly
encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.
Marc Rohatiner seeks to be relieved as counsel for Plaintiffs John P. Middleton and The John Powers Middleton Companies, LLC.
The Motion is granted because it meets all requirements of Cal. Rules of Court, Rule 3.1362.
Moving party to give notice.
Attorney is relieved as counsel of record for client effective upon the filing of the proof of service for the Court order (form MC-053) upon the client.
If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.
Document
Eulogia Septimo v. Vivid Mortgages Inc.,, Tikva Hope Sekezi,, My Home Advisors, Llc.,, Orin Kraiem,, 525 Chester Street, Llc., Yossi Yaacov, A/K/A Joseph Jacobs,, First Capital Homes Corp.,, Kobi Rannan,, Rock E. Small Plumbing And Heating, Inc.,, Erroll Small,, Akeeb B. Shekoni,, Ravi Construction, and, Askon Architects, P.C.,, Expediting Services, Inc., and, Terreance E. Dougherty, Esq.
Jun 11, 2019 |
Heela Capell
|
Commercial - Contract |
Commercial - Contract |
517987/2022
Preview
FILED: KINGS COUNTY CLERK 12/20/2019 12/02/2021 02:56 04:42 PM INDEX NO. 519788/2018 NYSCEF DOC. NO. 44 81 RECEIVED NYSCEF: 12/20/2019 12/02/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS Board of Managers of the City View Condominium Index Number: As Agent for the Unit Owners 519788/2018 Plaintiff Against THIRD PARTY SUMMONS Val-Hugh Capital Corp. and Michelle McHugh As Executrix for the Estate of Michael McHugh Def endants Val-Hugh Capital Corp. and Michê||ê McHugh As Executrix for the Estate of Michael McHugh Third Party Plaintiffs Against Gerald J Caliendo , Gerald J Caliendo RA PC, Ekistics Development Corp, Georgios Georgiadis, Oscar P Walters, Demerara Eng|ñéEring PLL Third Party Defendants TO THE ABOVE NAMED DEFENDANTS: YOU ARE HEREBY SUMMONED to appear in the Supreme Court of the State of New York, County of Kings at the office of the Clerk of the said Court located at 360 Adams St #4 Brooklyn NY11201 in the City and State of New York, within the time provided by the law as noted below and to fileyour answer to the annexed verified complaint with the Clerk; upon your failureto answer, judgmêñ‡ will be taken against you for the relief demanded in the verified complaint, together with costs of this action. 1 of 28 FILED: KINGS COUNTY CLERK 12/20/2019 12/02/2021 02:56 04:42 PM INDEX NO. 519788/2018 NYSCEF DOC. NO. 44 81 RECEIVED NYSCEF: 12/20/2019 12/02/2021 175 Pinelawn Road Suite 301 Melville, NY 11747 631 547 9646 Defendants' addresses: Gerald R Caliendo and · Gerald R Caliendo RA PC 130-72 Queens Blvd Briarwood NY 11435 Georgis Georgiadis and EkisticsDevelopment Corp 26* 405 Ave Astoria NY 11102 Oscar P Walters and Demerara Engineering PLLC 228-27 Mentone Ave Laurelton NY 11413 NOTE: The law picvided that : (a)Ifthissummons isserved by its delivery to you personally within the City of New York, you must appear and answer within TWENTY days after such service; or (b) ifthis summons is served by delivery to any person other than your personally, or is served outside 2 the of City 28 of FILED: KINGS COUNTY CLERK 12/20/2019 12/02/2021 02:56 04:42 PM INDEX NO. 519788/2018 NYSCEF DOC. NO. 44 81 RECEIVED NYSCEF: 12/20/2019 12/02/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS Board of Managers of the City View Condominium Index Number: As Agent for the Unit Owners 519788/2018 Plaintif f Agains t THIRD PARTY COMPLAINT Val-Hugh Capital Corp. and Michelle McHugh As Executrix for the Estate of Michael McHugh Defendants Val-Hugh Capital Corp. and Michelle McHugh As Executrix for the Estate of iv'|ichaelMcHugh Third Party Plaintiffs Against Gerald J Caliendo , Gerald J Caliendo RA PC, , EkisticsDevelopment Corp, Geõrgies Georgiadis, Oscar P Walters, Demerara Engineering PLLC Third Party Defendants ____ Third Party Plaintiffs Val-Hugh Capital Corp. and Michellê McHugh, as Executrix for the Estate of Michael McHugh ( collectively,"Third Party Plaintiffs") by their attorneys Ferrari & Wallace LLP, as and for itsThird Party Complaint, alleges as follows, against Gerald R Ca||ênds, Gerald R Caliendo RA " PC,(together "Caliendo") and Ekistics Deve!Gpinent Corp. and Gacrg:Gs Georgiadis (together Ekistics") and Oscar P Walters and Demerara Engineering PLLC (together "Demerara"), allcollectively, "Third 3 of 28 FILED: KINGS COUNTY CLERK 12/20/2019 12/02/2021 02:56 04:42 PM INDEX NO. 519788/2018 NYSCEF DOC. NO. 44 81 RECEIVED NYSCEF: 12/20/2019 12/02/2021 ("Offering Plan") filedwith the New York State Attorney General. The Plan was declared effective an May 2, 2012. 2.Sponsor acquired the property on or about 2005 for the purpose of developing the CGñdaminium. Sponsor hired professional architectural, general contracting, engiñêering, and construction design individuals and firms to actively oversee and partake in the design, fabrication and construction of the Building ( the "Project"). The final certificate of occupancy was issued by the New York City Department of Buildings on June 8, 2016 and closings for the condominium units commêñced August 2016 and were completed in December 2016. Michael McHugh, the sole shareholder of the Sponsor died May 16, 2018. 3.The under|ying action was filedby plaintiff,the Board of Managers of City View Condominium (the "Board") by the service of a summons on or about October 2018 . The Board thereafter filed a Verified Complaint on or about NGvember 26, 2018. The Board recently filedan Amended Complaint on or about July 3, 2019 and served same upon Third Party Plaintiff on or about September 3, 2019 ("Amêñded Complaint") 4.The underly|ñg premise of the Amended Complaint, albeit denied by Sponsor, is thatdesign and construction defects allegedly exist in the building. 5.In connection with the design and construction of the Building, Sponsor delegated exclusive responsibility to, among others, Third Party Defendants, who were the principal design and construction professionals actively engaged in the Project. 6.The Amended Complaint assert causes of action against the Sponsor alleging that construction and design defects exist in the Building that are solely based upon Sponsor's status as the Sponsor pursuant to the Offering Plan. As such, in the unlikely event that Sponsor or the Estate of Michael McHugh is found to have to liability the Board, itis vicarious only, and the Third Party Defendants must be required to answer to the Board for any damages awarded against the Third Party Plaintiffs. JURISDICTION AND VENUE 7.Jurisdiction and venue in this Court isproper since the Third Party Defendants were each involved with the architecture, construction, engiñêêring or design of the Building and the work, labor and services of the Third Party Defendants were performed in theState of New York, County of Kings. THE PARTIES AND THElR INVOLVEMENT IN THE PROJECT 4 of 28 8.Upon information and at allrelevant Third Defendant Gerald R. Caliendo was and FILED: KINGS COUNTY CLERK 12/20/2019 12/02/2021 02:56 04:42 PM INDEX NO. 519788/2018 NYSCEF DOC. NO. 44 81 RECEIVED NYSCEF: 12/20/2019 12/02/2021 10.Upon information and belief, Gerald R Caliendo is aNew York licensed and registered architect, the principal of Gerald R Caliendo RA PC, and the individual that actually prepared the plans and specifications for the Building and was responsible for filingwith the Department of Buildings all modifications, amendments, updates and corrections related to the design and construction of the Building required to obtain the Final Certificate of Occupancy. 11. Gerald R Caliendo and Gerald R Caliendo RA PC (the "Caliends Defendants") were the Architect of Record for the Project from inception to completion. All architectural services were delegated by Sponsor to the Caliendo Defendants. 12.Upon information and belief, at allrelevant times, Third Party Defendant Ekistics Development Corp is a General Contracting firm licensed in the City and State of New York with principal offices located at 26* 405 Avenue, Astoria NY 11102. Upon further information and belief,Ekistics Develcpment Corp was and is adomestic corporation organized and existing pursuant to the laws of the State of New York. 13.Upon information and belief, Georgios Georgiadis was the principal of Ekistics Development Corp and the individual that actually performed the general contracting work required to construct the Building. 14.Ekistics Development Corp was the General Contractor forthe Project from inception to corñpletion. All construction services were delegated by Sponsor to Ekistics Development Corp and itsprincipal Third Party Defendant Georgios Georgiadis, holder of the New York CityGeneral Contractor license. 15.Upon information and belief, at allrelevant times, Third Party Defendant Demerara Engineering PLLC was and stillisan eñgiñeering firm licensed in the City and State of New York with principal offices located at 228-27 Mentone Ave. Laurelton NY 11413. Upon further information and belief, Demerara Engineering PLLC was and isa domestic professional corporation organized and existing pursuant to the laws of the State of New York. Upon information and belief, Third Party Defendant Oscar P Walters isa Professional Engineer and principal of Demerara Engineering PLLC. 16.Oscar P Walters and Demerara Engiñêêring PLLC were the êñgineers of record for the Project and, in addition to other engineering duties, created and executed the Description of Property and Specifications and Certification included in Part liof the Offering Plan. Allservices related to the eng|ñeering of the Project and the creation of this section of the Offering Plan were delegated to the Demerara. 17.Exclusive for the performance of allof the respective essential 5 of 28 responsibility architectural, FILED: KINGS COUNTY CLERK 12/20/2019 12/02/2021 02:56 04:42 PM INDEX NO. 519788/2018 NYSCEF DOC. NO. 44 81 RECEIVED NYSCEF: 12/20/2019 12/02/2021 FIRST CAUSE OF ACTION (Common Law Indemnification from Third Party Defendants) 19.Third Party Plaintiffsrepeat and reallege the allegations contained in the foregoing paragraphs as though fullyset forth herein. 20.In connection with the design, eñgiñeering and construction of the Building, Sponsor delegated exclusive responsibility to, among others, the Third Party Defendants, who were the principal design engineering and construction professionals actively engaged in the Project. 21.Based upon thisrelationship, in the event the Board recovers a judgment against the Sponsor or Sponsor becomes obligated to pay damages arising from or in connecticñ with the allegations set forth in the Amended Complaint, such liability, by operation of law or otherwise, will have been caused and brought about by the culpable conduct of the Third Party Defendants and willnot have been caused by any culpable conduct on the part of the Sponsor. 22.Accordingly, the Third Party Defendants are liableto Sponsor, and Sponsor isentitled to comniun law indemnification from the Third Party Defendants in the fullamount of any judgment or verdict rendered against sponsor in cannection with the Project or the allegations contained in the Amended Complaint attorneys' by the Board or any other party, together with allcosts, disbursements and fees and such other relief as thiscourt deems due. SECOND CAUSE OF ACTION (Contribution from Third Party Defendants) 23.Third Party Plaintiffsrepeat and reallege the allegations contained in the foregoing paragraphs as though fullyset forth herein. 24.In connection with the design, engineering and construction of the Building, Sponsor delegated exclusive respansibility to, among others, the Third Party Defendants, who were the principal design, engineering and construction professionals actively engaged in the Project. 25.Based upon thisrelationship, ifthe damages alleged by the Board in the Amended Complaint were caused by the culpable conduct of any party, such culpable conduct was that of Third Party Defendants. 6 of 28 FILED: KINGS COUNTY CLERK 12/20/2019 12/02/2021 02:56 04:42 PM INDEX NO. 519788/2018 NYSCEF DOC. NO. 44 81 RECEIVED NYSCEF: 12/20/2019 12/02/2021 27.AccGiding|ÿ, the Third Party Defendants are liableto Sponsor, and Sponsor isentitled to contribution from the Third Party Defendants in accordance with their relative culpability, for any judgment or verdict rendered against Sponsor in ceññêction with the Project or the allegations contained in the Amended Complaint by the Board or any other party, tügether with allcosts, disbursements and attorneys' fees and such other relief as this court deems due. THIRD CAUSE OF ACTION (Breach of Contract and Contractual Indemnification) 28.Third Party Plaintiffs repeat and reallege the allesoilons contained in the foregoing paragraphs as though fully set forth herein. 29.Pursuant to various agreements, both written and oral ("Contracts") and at allrê|êvant times, the Third Party Deféñdants performed architectural, construction, engineering and design services for Sponsor in connection with the Project. 30.In connection with the design, engineering and construction of the Building, sponsor delegated exclusive responsibility to, among others, the Third Party Defendants, who were the principal design, engineering and construction professionals actively engaged in the Project. 31.Pursuant to the Contracts, the Third Party Defendants agreed to perform their services in a workmanlike manner and deliver said services without defect or damage. 32.Third Party Defendants agreed to indemnify and hold harrñless Sponsor from alllosses arising from their failure to properly perform their duties in connection with the work perfõrmed on the Project. 33.Accordingly, ifthe Board or any other party recovers damages against the Sponsor in cüññéction with the Project or the allegations of the Amendêd Complaint, Third Party Defendants are obligated for said damages related to their Breach of Contract, and are obligated to indemnify and hold harmless Sponsor, pursuant to the contracts for any and alllosses and damages. WHEREFORE, Third Party Plaintiffdemands judgment against Third Party Defendants as follows: On the FirstCause of Action, for common law iñdemnification from the Third Party Defendants together with attorneys fees, costs and disbursements; and On the Second Cause of Action, for contribution from the Third Party Defendants, together 7 of with 28 FILED: KINGS COUNTY CLERK 12/20/2019 12/02/2021 02:56 04:42 PM INDEX NO. 519788/2018 NYSCEF DOC. NO. 44 81 RECEIVED NYSCEF: 12/20/2019 12/02/2021 December 20 , 2019 Yours, FERRARI & CE LLP /' By: JOAN FERRARI, ESQ Attorneys for the Third Party Plaintiffs 175 Pinelawn Road suite 301 Mé|vil|è NY 11747 631 547 9646 8 of 28 FILED: KINGS COUNTY CLERK 12/20/2019 12/02/2021 02:56 04:42 PM INDEX NO. 519788/2018 NYSCEF DOC. NO. 44 81 RECEIVED NYSCEF: 12/20/2019 12/02/2021 VERIFICATION STATE OF NEW YORK COUNTY OF SUFFOLK MICHELLE MCHUGH, being duly sworn deposes and says I am the executrix of the Estate of Michael McHugh, the Estate that is the party to the within action as well as the Executrix of the of Michael the sole shareholder of Val- Estate McHugh, Hugh Capital Corp, a party to the within action; I have read the foregoing Third Party Complaint and know the contents thereof; and the same is true to my own knowledge, except as to matters stated to be alleged upon information and belief, and as to those matters I believe it to be true. Michelle McIfugh Sworn to before me this day of , 2019 C No.o2pg4 Nenot Commissio \kCounty 9 of 28 FILED: KINGS COUNTY CLERK 12/20/2019 12/02/2021 02:56 04:42 PM INDEX NO. 519788/2018 NYSCEF DOC. NO. 44 81 RECEIVED NYSCEF: 12/20/2019 12/02/2021 COMPLAINT "A" EXHIBIT AMENDED 10 of 28 FILED: KINGS COUNTY CLERK 12/20/2019 12/02/2021 02:56 04:42 PM INDEX NO. 519788/2018 YSCEF NYSCEFDOC.DOC.NO. 41 NO. 44 81 RECEIVED NYSCEF: 07/03/2019 RECEIVED NYSCEF: 12/20/2019 12/02/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS BOARD OF MANAGERS OF THE CITY VIEW CONDOMINIUM, AS AGENT FOR THE UNIT Index No.: 519788/2018 OWNERS . Plaintiff, VERIFIED AMENDED COMPLAINT - against - VAL-HUGH CAPITAL CORP. and MICHELLE MCHUGH as Executrix for THE ESTATE OF MICHAEL MCHUGH, Defendants. Plaintiff BOARD OF MANAGERS OF THE CITY VIEW CONDOMINIUM, AS AGENT FOR THE UNIT OWNERS (the "Board"), by and through its attorneys, Spolzino Smith Buss & Jacobs, LLP, as and for itsVerified Complaint against Defendants VAL-HUGH CAPITAL CORP. (the "Sponsor") and MICHELLE MCHUGH as Executrix for THE ESTATE OF MICHAEL MCHUGH ("McHugh Estate"), alleges as follows: PARTIES 1. Plaintiff Board of Managers of the City View Condominium, as Agent for the Unit Owners, is a condominium duly organized and existing pursuant to Article 9-B of the Real Property Law of the State of New York (the "Condominium Act"), and is located at 185 York Street, Brooklyn, New York 11201. 2. , The Board is the duly elected governing body of the Conderinium 11 and of is 28 . FILED: KINGS COUNTY CLERK 12/20/2019 12/02/2021 02:56 04:42 PM INDEX NO. 519788/2018 NYSCEF fSCEF DOC. NO. DOC. 41 NO. 44 81 RECEIVED NYSCEF: 07/03/2019 RECEIVED NYSCEF: 12/20/2019 12/02/2021 3. Upon information and belief, Defeñdañt Val-Hugh Capital Corp. is a New York Corporation with a principal place of business at 175 Pinelawn Road, Suite 400, Melville, New York 11747. 4. Upon information and belief Defendant McHugh Estate is the estate of Michael McHugh ("McHugh"), a natural person who resided at 344 Shore Road, Oakdale, New York 11769, prior to his death on or about May 16, 2018. 5. Upon information and belief, prior to his death on May 16, 2018, McHugh was the sole shareholder and principal of the Sponsor. 6. Upon inferrñation and belief, Michelle McHugh is a natural person who is the widow of McHugh, resides at 344 Shore Road, Oakdale, New York 11769, and serves as the Executrix of the McHugh Estate. NATURE OF ACTION 7. This is an action for money damages and equitable relief for fraud, breach of contract, breach of warranty (expmss and implied), breach of fiduciary duty and negligence arising Defendants' from construction of the Condo-ddsñ building located at 185 York Street, Brooklyn, New York (the "Building") in a manner that did not conform to the offering plan, the architectural plans, applicable building codes, and professional construction practices. Defendants had knowledge of the nonconforming conditions, concealed them and failed to correct them. Defand ws thereafter controlled the Condomidum's board of managers and intentionally, knowingly, recklessly, ñegligeñtly and frandúlently failed and refused to coñdüct appropriate 12 of 28 FILED: KINGS COUNTY CLERK 12/20/2019 12/02/2021 02:56 04:42 PM INDEX NO. 519788/2018 SCEF DOC. DOC. NYSCEF NO. 41 NO. 44 81 RECEIVED NYSCEF: 07/03/2019 RECEIVED NYSCEF: 12/20/2019 12/02/2021 BACKGROUND FACTS 8. The City View Condominium consists of 16 residential units (the "Residential Units") and one non-residential commercial unit, along with seven parking units (together with the Residential Units and non-residential unit, the "Units"), and the common elements as defined in the Declaration and By-Laws of the Condominium, including. the exterior walls and roofs of the Building. 9. The Sponsor was the sponsor of the offering of Condominium Units to the public pursuant to an offering plan (as amended, the "Plan") filed with the New York State Office of the Attorney General on December 29, 2010, and was subsequently amended twelve (12) times, the last of which is dated October 31, 2016. 10. Upon information and belief, the Declaration of Condominium estabHshing the Condominlen was recorded in the Office of the City Register of New York City on September 11, 2012 as CRFN #2012000357108. 11. According to the Plan, McHugh was the principal and sole shareholder of the Sponsor at alltimes relevant herein. OFFERING PLAN REPRESENTATIONS 12. In accordance with Section 20 of the regulations issued pursuant to General Business Law Article 23-A, as amended, the Sponsor and McHugh, individually, made various sworn representations and certifications relating to the Plan under penalty of perjury. 13. The Sponsor and McHugh represented in the Plan that the "Sponsor will 13 of complete 28 FILED: KINGS COUNTY CLERK 12/20/2019 12/02/2021 02:56 04:42 PM INDEX NO. 519788/2018 IYSCEF NYSCEF DOC.DOC. NO. NO. 41 44 81 RECEIVED NYSCEF: 07/03/2019 RECEIVED NYSCEF: 12/20/2019 12/02/2021 14. The Plan included a description of the property and the planned improvements prepared by the Sponsor's engineers, Demerara Engineering, PPLC, and signed by Oscar P. Walters, P.E., based on plans prepared by a licensed architect, the office of Gerald J. Caliendo, R.A., A.I.A. The Sponsor adopted the description of the property and incorporated itinto the Plan. 15. The Plan included floor plans of each Unit as well as the roof and basement. 16. Pursuant to the Sponsor's Certification contained in the Plan, the Sponsor and McHugh, individually, jointly and severally certified that: "The offering plan does, and that documents submitted hereafter by us which amend or supplement the offering plan will: 1. set forth the detailed terms of the transaction and be complete, current and accurate; 2. afford potential investors, purchasers and participants an adequate basis upon which to found their judgment; 3. not omit any material fact; 4. not contain any untrue statement of a material fact; 5. not contain any fraud, deception, concealment, suppression, false preteñse or fictitious or pretended purchase or sale; 6. not contain any promise or representation as to the future which is beyond reasonable expectation or unwarranted by existing circumstances; 7. not contain any representation or statement which is false where we: (a) knew the truth; (b) with reasonable effort could have known the truth; (c) inade no reasonable effort to ascertain the truth; or (d) did not have knowledge concerning the representations or statement made." 17. Each of the Condominium's unit owners (the "Unit Owners") purchased his or her Unit pursuant to a purchase agreement with the Sponsor that was substantially the same as a form of purchase agreement included in Part II of the Plan (the "Purchase Agreement"). 14 of 28 FILED: KINGS COUNTY CLERK 12/20/2019 12/02/2021 02:56 04:42 PM INDEX NO. 519788/2018 YSCEF NYSCEF DOC. DOC. NO. NO. 41 44 81 RECEIVED NYSCEF: 07/03/2019 RECEIVED NYSCEF: 12/20/2019 12/02/2021 including all attachments, was incorporated into the Purchase Agreement by reference as if fully set forth therein; and (iv) in case of any conflict between the Purchase Agreement and the Plan, the Plan controls. 19. The Sponsor and McHugh stated in the Fourth Amendment that the construction of the Condominium was substantially completed in 2013, though substantial work was done through at least 2015. 20. Upon information and belief, the Sponsor closed its first Unit sale in the Condominium in or around August 2016. 21. The Sponsor also designated the Board of Managers of the Condominium to be comprised solely of principals or affiliates of the Sponsor. DESIGN AND CONSTRUCTION DEFECTS 22. McHugh, individually and as the principal of the Sponsor, and/or his agents were present at the site with regular frequency throughout construction and worked closely with the general contractor and the architect. 23. Upon information and belief, McHugh was also the principal of the general contractor that constructed the Building. 24. Upon information and belief, shortly after taking possession of their Units, Unit