Preview
INDEX
INDEX NO.NO. 162502/2015
162502/2015
FILED:
TILED : NEW
NEW YORK
YORK COUNTY
COUNTY CLERK
CLERK 10/28/2019
10/13/2017 06:44
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Pl
NYSCEF DOC. NO.NO. 279
21 RECEIVED NYSCEF:
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NYSCEF DOC.
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
IGREGORY WELCH and PRISCILLA Index No.: 162502/2015
WELCH,
Summons
Plaintiffs,
-against-
260-261 MADISON AVENUE LLC, SKYLIFT
CONTRACTOR CORP. and BAY CRANE
SERVICE INC.,
Defendants.
SKYLIFT CONTRACTOR CORP.,
Third-Party Plaintiff,
v.
MARINE & INDUSTRIAL SUPPLY COMPANY,
INC., d/b/a MARINE & INDUSTRIAL TESTING
SOLUTIONS; MARINE & INDUSTRIAL
TESTING SOLUTIONS; HANES SUPPLY, INC.,
as successor-by-merger to and/or d/b/a PAUL'S
WIRE ROPE & SLING; and PAUL'S WIRE ROPE
& SLING,
Third-Party Defendants.
TO THE ABOVE-NAMED THIRD-PARTY DEFENDANTS:
YOU ARE SUMMONED to answer the third-party complaint in this action and to serve
plaintiffs' plaintiffs'
a copy of your answer on the third-party and the attorneys within twenty
(20) days after service of this summon, exclusive of the day of service (or within thirty (30)
days after the service is complete if the summons and complaint are not personally delivered to
you within the State of New York); and
[continued on next page]
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in case of your failure to appear or answer, judgment will be taken against you default for the
by
relief demanded in the third-party complaint.
Dated: New York, New York
October 12, 2017
KAUFMAN DOLOWICH & VOLUCK, LLP
Attorneys for Defendant/Third-Party Plaintiff
Skylift Contractor Corp.
By:
SeptfE'Miller
20*
40 Exchange Place, Floor
New York, New York 10005
(212) 485-9600
To: MARINE & 1NDUSTRIAL SUPPLY COMPANY, INC.
150 Virginia Street
Mobile, Alabama 36603
MARINE & INDUSTRIAL TESTING SOLUTIONS
% Marine & Industrial Supply Company, Inc.
150 Virginia Street
Mobile, Alabama 36603
HANES SUPPLY, INC.
55 James E Casey Drive
Buffalo, New York 14206
PAUL'S WIRE ROPE & SLING
% Hanes Supply, Inc.
55 James E Casey Drive
Buffalo, New York 14206
4829-6831-7521, v. 1
2
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
........................======-----........................------x
GREGORY WELCH and PRISCILLA WELCH,
Plaintiff/Petitioner,
- - 162502/2015
against Index No.
260-261 MADISON AVENUE LLC, et al.
Defendant/Respondent.
-----------------------------------------------======-¬----------x
NOTICE OF COMMENCEMENT OF ACTION
SUBJECT TO MANDATORY ELECTRONIC FILING
PLEASE TAKE NOTICE that the matter captioned above has been commenced as an
electronically filed case in the New York State Courts Electronic Filing System ("NYSCEF") as
required by CPLR § 2111 and Uniform Rule § 202.5-bb (mandatory electronic filing).This notice
is being served as required by that rule.
NYSCEF is designed for the electronic filing of documents with the County Clerk and the
court and for the electicñic service of those documents, court documents, and court notices upon
counsel and unrepresented litigants who have consented to electronic filing.
Electronic filing offers significant benefits for attomeys and litigants, permitting papers to be
filed with the County Clerk and the court and served on other parties simply, convenieñtly, and
quickly. NYSCEF case documents are filed with the County Clerk and the court by filing on the
NYSCEF Website, which can be done at any time of the day or night on any day of the week. The
documents are served automatically on allconsenting e-filers as soon as the document is upicaded
to the website, which sends out an immediate email notification of the filing.
The NYSCEF System charges no fees for filing, serving, or viewing the electroñic case
record, nor does itcharge any fees to print any filed documents. Normal filing fees must be paid,
but this can be done on-line.
Partles represented by an attorney: An attomey representing a party who is served with
this notice must either: 1) immediately record his or her representation within the e-filed matter on
the NYSCEF site; or 2) file the Notice of Opt-Out form with the clerk of the court where this action
is pêñding. Exemptions from mandatory e-filing are limited to attemeys who certify in good faith that
they lack the computer hardware and/or scanner and/or internet connection or that they lack (along
with all employees subject to their direction) the operational kñcwledge to comply with e-filing
requirements. [Section 202.5-bb(e)]
Parties not represented an attorney: Unrepresented litigants are exempt from e-
by
filing. They can serve and file documents In paper form and must be served with documents
in paper form. However, an unrepresented litigant may participate In e-filing.
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For information on how to participate in e-filing, unrepresented litigants should contact the
appropriate clerk In the court where the action was filed or visit www.nycourts.gov/efile-
unrepresented. Unrepresented litigants also are encouraged to visit www.nycourthelp.qov or
contact the Heip Center in the court where the action was filed. An unrepresented litigant who
consects to e-filing may cease participation at any time. However, the other parties may continue
to e-file their court documents in the case.
For additional information about electronic filing and to create a NYSCEF account, visitthe
NYSCEF website at www.nycourts.gov/efile or contact the NYSCEF Resource Center (phone: 646-
386-3033; e-mail: efile@nycourts.qov).
october 12, 201,7
Dated:
40 Exchange Place, 20th Floor
Signature Address
Scott E. Miller New York, New York 10005
Name
Kaufman Dolowich & Voluck, LLP (212) 485-9600
Firm Name Phone
smiller@kdvlaw.com
E-Mail
Third-Party Defendants Named Above
To:
913/15
Index # Page 2 of 2 EFM-1
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
GREGORY WELCH and PRISCILLA WELCH, Index No.: 162502/2015
Third-Party Complaint
Plaintiffs,
-against-
260-261 MADISON AVENUE LLC, SKYLIFT
CONTRACTOR CORP. and BAY CRANE
SERVICE INC.,
Defendants.
SKYLIFT CONTRACTOR CORP.,
Third-Party Plaintiff,
v.
MARINE & INDUSTRIAL SUPPLY COMPANY,
INC., d/b/a MARINE & INDUSTRIAL TESTING
SOLUTIONS; MARINE & INDUSTRIAL
TESTING SOLUTIONS; HANES SUPPLY, INC.,
as successor-by-merger to and/or d/b/a PAUL'S
WIRE ROPE & SLING; and PAUL'S WIRE ROPE
& SLING,
Third-Party Defendants.
Defendant/third-party plaintiff Skylift Contractor Corp. ("Skylift"), by its attorneys
Kaufman Dolowich & Voluck, LLP, as and for itsthird-party complaint, alleges as follows, all
upon information and belief:
The Parties
1. At all times relevant hereto, Skylift was and stillis a corporation organized and
existing under the laws of the State of New York.
2. At all times relevant hereto, third-party defendant Marine & Industrial Supply
Company ("M&ISC") was and stillis a corporation organized and existing under the laws of the
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State of Alabama.
3. At all times relevant hereto, M&ISC did and continues to do business under the
name Marine & Industrial Testing Solutions.
4. At all times relevant hereto, third-party defendant Marine & Industrial Testing
Solutions ("M&ITS") was and still is a corporation or other business entity organized and
existing under the laws of the State of Alabama.
5. At all times relevant hereto, third-party defendant Hanes Supply, Inc. ("Hanes")
was and stillis a corporation organized and existing under the laws of the State of New York.
6. At all times relevant hereto, third-party defendant Paul's Wire Rope & Sling
("Paul's") was a corporation organized and existing under the laws of the State of Connecticut.
7, On or about January 2, 2013, Hanes acquired the shares or equity in Paul's and
became the successor-by-merger to the liabilities of Paul's.
8. On or about January 2, 2013, Paul's became an unincorporated division of Hanes
and/or Hanes did business under the name Paul's Wire Rope & Sling.
Jurisdiction
9. M&ISC regularly does business in the State of New York.
10. M&ISC derives substantial revenue from products used in the State of New York,
or derives substantial revenue from interstate or international commerce, and expected or should
reasonably have expected itstortious acts to have consequences in the State of New York.
11. M&ITS regularly does business in the State of New York.
12. M&ITS derives substantial revenue from products used in the State of New York,
or derives substantial revenue from interstate or international commerce, and expected or should
reasonably have expected itstortious acts to have consequences in the State of New York.
2
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13. Prior to Jañüary 2, 2013, Paul's derived substantial revenue from products used in
the State of New York, or derived substantial revenue from interstate or international commerce,
and expected or should rear-mhly have expected its tortious acts to have consequences in the
State ofNew York.
The Main Action
14. Plaintiffs Gregory Welch and Priscilla Welch commenced the main action in the
Supreme Court of the State of New York against Skylift and other defendants for personal
injuries allegedly sustained on May 31, 2015. A copy of plaintiff's summons and complaint in
the main action is annexed hereto as Exhibit A.
15. Plaintiffs allege in that complaint that such injuries were sustained when a chiller
unit that Skylift and other defendants were hoisting into the building at 261 Madison Avenue,
30°¹
New York, New York (the "Building"), fell from the floor.
16. Other defendants in the main action have or may assert cross-claims against
Skylift in the main action.
17. That chiller unit fell when a sling used to rig the unit failed.
18. In its answer to the complaint, Skylift affirmatively alleges that, if any injuriess
were sustained by the plaintiffs, such damages were caused by the negligence and culpable
conduct of third-parties over whom Skylift had neither control nor responsibility. A copy of
Skylift's answer is annexed hereto as Exhibit B.
Product Liability Facts
19. That sling was designed, manufactured and placed into the stream of commerce
by M&ISC.
3
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20. That sling was designed, manufactured and placed into the stream of commerce
by M&ITS.
21. That sling was distributed by Hanes.
22. That sling was distributed by Paul's.
23. M&ISC expressly and impliedly warranted and represented that the sling was
suitable for rigging operations such as the one engaged in by Skylift, and was suitable for use
with loads weighing greatly in excess of the chiller unit.
24. M&IST expressly and impliedly warranted and represented that the sling was
suitable for rigging operations such as the one engaged in by Skylift, and was suitable for use
with loads weighing greatly in excess of the chiller unit.
25. Hanes expressly and impliedly warranted and represcated that the sling was
suitable for rigging operations such as the one engaged in by Skylift, and was suitable for use
with loads weighing greatly in excess of the chiller unit.
26. Paul's expressly and impliedly warranted and represented that the sling was
suitable for rigging operations such as the one engaged in by Skylift, and was suitable for use
with loads weighing greatly in excess of the chiller unit.
27. Skylift relied on those warranties and representations when using the sling to rig
the chiller unit.
28. However, due to a design defect, the sling was not suitable for use with loads of
the weight of the chiller unit.
29. However, due to a manufacturing defect, the sling was not suitable for use with
loads of the weight of the chiller unit.
4
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30. However, due to the negligence of M&ITS in designing and manufacturing the
sling, the sling was not suitable for use with loads of the weight of the chiller unit.
plaintiffs'
31. The accident referred to in the complaint was caused by the breach of
warranties and misrepresentations, negligence, defective design and/or defective manufacture
and other culpable conduct of M&ISC, which is strictly liable therefore.
plaintiffs'
32. The accident referred to in the complaint was caused by the breach of
warranties and misrepresentations, negligence, defective design and/or defective manufacture
and other culpable conduct of M&IST, which is strictly liable therefore.
plaintiffs'
33. The accident referred to in the complaint was caused by the breach of
warranties and misrepresentations, negligence, defective design and/or defective manufacture
and other culpable conduct of Hanes, which is strictly liable therefore.
plaintiffs'
34. The accident referred to in the complaint was caused by the breach of
warranties and misrepresentations, negligence, defective design and/or defective manufacture
and other culpable conduct of Paul's, which is strictly liable therefore.
First Cause of Action Against All Third-Party Defendants
(for Apportionment)
35. Skylift repeats and realleges, with the same force and effect as though fully set
"1" "34"
forth herein, every allegation contained in paragraphs through of this third-party
complaint.
36. If the plaintiffs sustained the injuries and damages in the manner and at the time
and place alleged, and if it is found that Skylift is liable to plaintiffs herein, all of which is
specifically denied, then Skylift, on the basis of apportionment of responsibility for the alleged
occurreñce, is entitled to contribution from all third-party defendants to pay for all or part of any
5
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verdict or judgment that plaintiff may recover against Skylift proportionate to each party's actual
negligence or culpable conduct.
Second Cause of Action Against All Third-Party Defendants
(Contractual and Common Law Indemnification and Contribution)
37. Skylift repeats and realleges, with the same force and effect as though fully set
"1" "36"
forth herein, every allegation contained in paragraphs through of this third-party
complaint.
38. If the plaintiffs sustained the damages in the manner and at the time and place
alleged, and if it is found that Skylift is liable to plaintiffs herein, all of which is specifically
denied, then Skylift is entitled to contractual and/or co1union law indemnification and/or
contribution from any judgment or verdict rendered against itfrom all third-party defendants.
WHEREFORE, Defendant/third-party plaintiff Skylift Contractor Corp., on the basis of
apportionment of responsibility, common-law indemnification, contractual indemnification
and/or contribution, demands judgment against third-party defendants Marine & Industrial
Supply Company, Inc., Marine & Industrial Testing Solutions, Hanes Supply, Inc. and Paul's
Wire Rope & Sling for all or part of any verdict or judgment against Skylift, together with the
costs and disbursements of this action, and for such other and further relief as the Court may
deem just and proper.
Dated: New York, New York
October 12, 2017
KAUFMAN DOLOWICH & VOLUCK, LLP
Attorneys for Defendant/Third-Party Plaintiff
Skylift Contractor£orp.
By:
Scott E. Mi e
6
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20*
40 Exchange Place, Floor
New York, New York 10005
(212) 485-9600
4832-0267-4257,v. I
7
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|FILED: .NEW YORK COUNTY CLERK 03/24 /2016 03 : 42 PM|
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 03/24/2016
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-______________-____........----------··-------------·------------X
GREGORY WELCH and PRISCILLA WELCH, Index No.: 162502/2015
Plaintiffs,
VERIFIED ANSWER
-against-
260-261 MADISON AVENUE LLC, SKYLIFT
CONTRACTOR CORP. and BAY CRANE SERVICE
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K. QUILLIN VS. NOELLE BECKER MORENO ET AL
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CGC24611734
Matter on the Law & Motion calendar for Wednesday, July 10, 2024, Line 11. DEFENDANT NOELLE MORENO's MOTION TO STRIKE COMPLAINT. 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. 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
ARMEN BEGOYAN VS CITY OF LOS ANGELES, ET AL.
Jul 11, 2024 |
21STCV34525
Case Number:
21STCV34525
Hearing Date:
July 11, 2024
Dept:
32
PLEASE NOTE
:
Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.
If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at
sscdept32@lacourt.org
indicating that partys intention to submit.
The email shall include the case number, date and time of the hearing, counsels contact information (if applicable), and the identity of the party submitting on this tentative ruling.
If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.
If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.
Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court
.
TENTATIVE RULING
DEPT
:
32
HEARING DATE
:
July 11, 2024
CASE NUMBER
:
21STCV34525
MOTIONS
:
Motion for Terminating Sanctions
MOVING PARTY:
Defendant City of Los Angeles
OPPOSING PARTY:
None
BACKGROUND
Defendant City of Los Angeles (
Defendant) moves for terminating sanctions against Plaintiff
Armen Begoyan (Plaintiff) for failure to comply with the Courts April 26, 2024 discovery order. Defendant seeks to dismiss the entire action. No opposition has been filed.
LEGAL STANDARD
To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose&sanctions against anyone engaging in conduct that is a misuse of the discovery process. (Code Civ. Proc. section 2023.030.) The court may impose a terminating sanction for misuse of the discovery process by any of the following: (1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process; (2) An order staying further proceedings by that party until an order for discovery is obeyed; (3) An order dismissing the action, or any part of the action, of that party; (4) An order rendering a judgment by default against that party. (Code Civ. Proc. § 2023.030(d).)
Failing to respond or to submit to an authorized method of discovery, or
disobeying a court order to provide discovery,
constitutes a misuse of the discovery process. (Code Civ. Proc., § 2023.010, subd. (d), (g).)
The trial court may order a terminating sanction for discovery abuse after considering the totality of the circumstances: [the] conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery. (
Los Defensores, Inc. v. Gomez
(2014) 223 Cal.App.4th 377, 390, quoting
Lang v. Hochman
(2000) 77 Cal.App.4th 1225, 1246.)
Generally, [a] decision to order terminating sanctions should not be made lightly.
But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction. (
Los Defensores, supra
, 223 Cal. App. 4th at p. 390 [citation omitted].)
Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders. (
Los Defensores, supra
, 223 Cal.App.4th at p. 390 citing
Lang, supra
, 77 Cal.App.4th at pp. 1244-1246 [discussing cases]; see, e.g.,
Collisson & Kaplan v. Hartunian
(1994) 21 Cal.App.4th 1611, 1617-1622 [terminating sanctions imposed (by striking the defendants Answer and subsequently granting default judgment) after defendants failed to comply with one court order to produce discovery];
Laguna Auto Body v. Farmers Ins. Exchange
(1991) 231 Cal.App.3d 481, 491, disapproved on other grounds in
Garcia v. McCutchen
(1997) 16 Cal.4th 469, 478, n. 4 [terminating sanctions imposed against the plaintiff for failing to comply with a discovery order and for violating various discovery statutes].)
If a party . . . fails to obey an order compelling answers [to interrogatories or requests for production], the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to that sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010). (Code Civ. Proc. §§ 2030.290(c); 2031.300(c).)
DISCUSSION
Written discovery was originally served on Plaintiff on March 1, 2023. (Kahramanian Decl. ¶ 2.) On September 21, 2023 and January 11, 2024, Defendants counsel emailed Plaintiffs counsel requesting responses but received no response. (
Id.
¶ 3.)
On April 26, 2024, the Court granted
Defendants unopposed motion to compel Plaintiffs responses to Demand for Production of Documents, Set One, Special Interrogatories, Set One, and Form Interrogatories, Set One. Plaintiff was ordered to provide verified responses, without objections, within 10 days. (Min. Order, 4/26/24.) The Court also imposed $700.00 in monetary sanctions against Plaintiff and his counsel of record.
On May 2, 2024, Defendant filed and served electronic notice of the ruling on Plaintiffs counsel. Defendant contends that no responses have been served complying with the Courts order. (Kahramanian Decl. ¶ 4.) Plaintiff has not filed an opposition to this motion.
Therefore, it appears that the discovery was first served in March 2023, and the motion to compel was granted on April 26, 2024. Throughout this time, Defendant sought to obtain responses through informal ways before ultimately obtaining an order to compel. The delay in time also demonstrates that Defendant has been prevented from mounting a defense against this case. Considering the above, the fact Plaintiff did not oppose this motion nor the previous motion to compel, and monetary sanctions have been ineffective, the Court finds Plaintiffs actions to be willful. Therefore, the motion for terminating sanctions is granted.
CONCLUSION
Therefore, Defendant
City of Los Angeles
motion for terminating sanctions is GRANTED. The only remaining defendants are Doe Defendants who have not been named or served, and therefore t
he Court orders the complaint dismissed in its entirety.
If Defendant moves to dismiss the cross-complaint at the hearing on this motion, then the Final Status Conference and Jury Trial dates will be advanced and vacated.
Defendant shall provide notice of the Courts ruling and file a proof of service of such.
Ruling
Gilbert Hernandez vs. In-Shape Health Clubs, LLC
Jul 11, 2024 |
20CV-02521
20CV-02521 Gilbert Hernandez v. In-Shape Health Clubs LLC
Trial Settng Conference
Appearance required. Remote appearances are permitted. Parties who wish to appear
remotely must contact the clerk of the court at (209) 725-4111 to arrange for a remote
appearance. Appear to address the status of case following the unsuccessful mediation
and whether it is time to set this matter for trial.
Ruling
SOCORRO ALEGRIA VS ALTAMED HEALTH SERVICES CORPORATION, A CALIFORNIA CORPORATION, ET AL.
Jul 11, 2024 |
24PSCV00032
Case Number:
24PSCV00032
Hearing Date:
July 11, 2024
Dept:
K
1.
Defendant AltaMed Health Services Corporations Motion for Judgment on the Pleadings is summarily GRANTED in part (i.e., as to the fifth, sixth and tenth causes of action) and otherwise DENIED in part (i.e., as to the eighth and ninth causes of action).
2.
Defendant AltaMed Health Services Corporations Motion to Strike is DENIED as MOOT.
Background
Plaintiff Socorro Alegria (Plaintiff) alleges as follows: Plaintiff was sexually assaulted during her March 22, 2023 medical imaging appointment. On January 3, 2024, Plaintiff filed a complaint, asserting causes of action against AltaMed Health Services Corporation (AltaMed), Jose Luis Sanchez and Does 1-20 for:
1.
Negligent Hiring Retention, Supervision and Failure to Terminate (v. AltaMed only)
2.
Common Law Assault (v. Sanchez only)
3.
Common Law Battery (v. Sanchez only)
4.
Sexual Battery in Violation of Civil Code § 1708.5 (v. Sanchez only)
5.
Violation of Civil Code § 51.7
6.
Sexual Harassment in Violation of Civil Code § 51.9
7.
Intentional Infliction of Emotional Distress (v. Sanchez only)
8.
Negligent Infliction of Emotional Distress
9.
Negligence (v. AltaMed only)
10.
Violation of the Tom Bane Civil Rights Act A Case Management Conference is set for July 11, 2024.
1.
Judgment on the Pleadings
Legal Standard
The rules governing demurrers are generally applicable to a motion for judgment on the pleadings. (
Cloud v. Northrop Grumman Corp.
(1998) 67 Cal.App.4th 995, 999; Code Civ. Proc., § 438, subd. (d) [The grounds for motion. . . shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. Where the motion is based on a matter of which the court may take judicial notice. . ., the matter shall be specified in the notice of motion, or in the supporting points and authorities, except as the court may otherwise permit].)
A motion by a plaintiff may only be made on the grounds that the complaint states facts sufficient to constitute a cause or causes of action against the defendant and the answer does not state facts sufficient to constitute a defense to the complaint. (Code Civ. Proc., § 438, subd. (c)(1)(A).) A motion by a defendant may only be made on the grounds that (1) [t]he court has no jurisdiction of the subject of the cause of action alleged in the complaint or (2) [t]he complaint does not state facts sufficient to constitute a cause of action against that defendant. (Code Civ. Proc., § 438, subd. (c).)
Although a nonstatutory motion may be made at any time either prior to the trial or at the trial itself (
Stoops v. Abbassi
(2002) 100 Cal.App.4th 644, 650 [quotation marks and citation omitted]), a statutory motion cannot be made after entry of a pretrial conference order or 30 days before the initial trial date, whichever is later, unless the court otherwise permits. (Code Civ. Proc., § 438, subd. (e).)
Discussion
AltaMed moves the court, pursuant to Code of Civil Procedure § 438, for judgment on the pleadings as to the fifth, sixth, and eighth through tenth (i.e., for
Violation of Civil Code § 51.7, Sexual Harassment in Violation of Civil Code § 51.9, Negligent Infliction of Emotional Distress, Negligence and Violation of the Tom Bane Civil Rights Act, respectively)
causes of action in Plaintiffs complaint, on the basis that they each fail to state facts sufficient to constitute causes of action.
At the outset, Plaintiff represents that she agrees to dismiss her fifth, sixth and tenth causes of action, without prejudice (Opp., 1:26-2:2); accordingly, in the event a Request for Dismissal is not on file by the time of the hearing, the court will summarily grant the motion in this regard.
The courts following analysis, then, is limited to Plaintiffs eighth and ninth causes of action, for Negligent Infliction of Emotional Distress and Negligence, respectively:
AltaMed asserts that these causes of action fail because it cannot be held vicariously liable for an alleged sexual assault by its employee. [A]n employer is vicariously liable for the torts of its employees committed within the scope of the employment. (
Lisa M. v. Henry Mayo Newhall Memorial Hospital
(1995) 12 Cal.4th 291, 296.) However, [a]n
employer will not be held liable for an assault or other intentional tort that did not have a causal nexus to the employee's work. (
Id.
at 297).
The court construes Plaintiffs eighth and ninth causes of action as sounding in direct negligence, rather than vicarious liability. Further, while AltaMed contends that these causes of action are surplusage, this argument was raised for the first time in the reply; as such, it is disregarded. The motion is denied in this regard.
2.
Motion to Strike
AltaMed moves the court for an order striking out the following language from Plaintiffs complaint:
1.
Page 12, paragraph 68, lines 6-12;
2.
Page 13, paragraph 79, lines 9-15;
3.
Page 16, paragraph 102, lines 18-24;
4.
Page 17, paragraph 7, line 13;
5.
Page 17, paragraph 9, line 15;
6.
Page 17, paragraph 10, line 16. AltaMeds request is denied as moot. All of the allegations AltaMed seeks to have stricken pertain to the fifth, sixth and tenth causes of action, which Plaintiff has agreed to dismiss.
Ruling
Thompson, Harry Fayne III vs. Rose, Steven Leon et al
Jul 22, 2024 |
S-CV-0052451
S-CV-0052451 Thompson, Harry Fayne III vs. Rose, Steven Leon et al
No appearance required. CMC is continued to 10/14/24 at 2pm in Dept. 6.
Complaint is not at issue - Need responsive pleading, default or dismissal as to
Defendant(s): Grossman, Marilyn Joy
Additionally, no proof of service has been filed as to Defendant(s): Rose, Steven
Leon
Ruling
TODD BERTRANG, ET AL. VS IVORY HOLDINGS, LLC, A LIMITED LIABILITY COMPANY, ET AL.
Jul 09, 2024 |
21STCV42736
Case Number:
21STCV42736
Hearing Date:
July 9, 2024
Dept:
S25 Procedural Background Plaintiffs, Todd Bertrang (Bertrang) and Ophie Beltran (Beltran) (collectively, Plaintiffs) sued Defendants, Lido Sailing Club, Inc. (Lido), Ivory Holdings, LLC (Ivory), and Scott Vollero (Vollero) based on injuries Plaintiffs allege they sustained from Bertrangs exposure to hazardous chemicals. Plaintiffs filed their original complaint on November 18, 2021, and filed a First Amended Complaint (FAC) on May 4, 2022. Notably, Plaintiffs did not serve any party prior to filing their FAC, and no party responded to the original complaint. On September 8, 2022, the Court sustained Lido Sailing Club, LLCs demurrer to the FAC with leave to amend. (September 8, 2022 Minute Order.) On September 30, 2022, Plaintiffs filed their Second Amended Complaint (SAC). On October 5, 2022, Lido filed a demurrer to the SAC. Shortly thereafter, the personal injury hub court found the case complicated and transferred it to Long Beach for all further proceedings. On January 12, 2023, Lido re-filed its demurrer to the SAC in Department S27. On June 27, 2023, the Court continued the hearing on the demurrer, finding the parties had not adequately met and conferred prior to filing their papers. On July 27, 2023, the Court sustained the demurrer with leave to amend. On September 20, 2023, rather than amending the SAC, Plaintiffs dismissed Lido from the case. On December 21, 2023, Defendants Ivory Holdings and Vollero filed a demurrer with the motion to strike portions of the SAC. On January 23, 2024, the Court sustained the demurrer with leave to 20 days amend as to the NIED cause of action and alter ego liability cause of action and overruled the strict liability for ultrahazardous activity cause of action, the violation of Health and Safety Code, § 25359.7, cause of action and the IIED cause of action; the Court also granted the motion to strike without leave to amend as to punitive damages and related allegations. (January 23, 2024 Minute Order.) On April 24, 2024, Plaintiffs filed a Third Amended Complaint (TAC) more than two months after the Courts January 23 order. Meet and Confer Defendant Volleros counsel states that he sent a meet and confer letter to Plaintiffs counsel on May 17, 2024 detailing issues with the TAC and his availability for a telephonic meet and confer at least 5 days prior to filing the instant motions. (Rasmussen Decl.1, ¶ 5, Exh. B.) Defendant Volleros counsel states that Plaintiffs counsel did not respond to the meet and confer attempt. (Id., at ¶ 6.) In opposition, Plaintiffs counsel argues Defendant Volleros counsel failed to meet and confer because the issues were not discussed in person or by telephone as required under Code Civ. Proc., §§ 430.41, 435.5. Notwithstanding the parties conflicting ideas of meet and confer, it is very likely an informal attempt to resolve the matter would have been unsuccessful. Analysis 1. Delay in Filing of Third Amended Complaint Code Civ. Proc., § 472b, states that: [w] hen a demurrer to any pleading is sustained or overruled, and time to amend or answer is given, the time so given runs from the service of notice of the decision or order, unless the notice is waived in open court, and the waiver entered in the minutes. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2024) ¶ 7:145; Cano v. Glover (2006) 143 Cal.App.4th 326, 329-330.) After expiration of the time in which a pleading can be amended as a matter of course, the pleading can only be amended by obtaining the permission of the court. (Leader v. Health Indus. of Am., Inc. (2001) 89 Cal. App. 4th 603, 613.) While a court has discretion to require a noticed motion before permitting a plaintiff to file an amended complaint late, a court also has the discretion to accept a filing without a noticed motion. (Harlan v. Dep't of Transportation (2005) 132 Cal. App. 4th 868, 873.) The Court exercises its discretion and accepts Plaintiffs untimely filed Third Amended Complaint without a noticed motion. 2. Second Amended Complaint Holding (Alter Ego) On January 23, 2024, Judge Mark Kim sustained Defendant Volleros Demurrer to the Second Amended Complaint with leave to amend. Judge Kim ruled: All claims against Volero are plead on an alter ego theory. Plaintiffs alter ego allegations are found at ¶6 of the SAC, and merely allege that each defendant was acting as the alter ego of each other defendant. Relying on Rutherford Holdings, LLC v. Playa del Rey (2014) 223 Cal.App. 221, 236, Judge Kim held: Plaintiffs herein failed to allege any of the ultimate facts showing alter ego liability. They failed to allege unity of interest, domination and control, inadequate capitalization, etc. Voleros demurrer is therefore sustained with leave to amend. Plaintiffs must allege ultimate facts showing imposition of liability against Volero would be proper. (See January 23, 2024 Minute Order, Legal Standard on Demurrer, Alter Ego Liability, 3(h)). 3. Demurrer to the Third Amended Complaint (Alter Ego) A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing partys pleading. It is error for the trial court to sustain a demurrer if the plaintiff has stated a cause of action under any possible legal theory, and it is an abuse of discretion for the court to sustain a demurrer without leave to amend if the plaintiff has shown there is a reasonable possibility a defect can be cured by amendment. California Logistics, Inc. v. State of California (2008) 161 Cal. App. 4th 242, 247. The burden is on the complainant to show in what manner and how that amendment will change the legal effect of the pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) Plaintiffs allegations of alter ego in the TAC are found at ¶ 3 and 6. These allegations are identical to the alter ego allegations found at ¶ 3 and ¶6 of the SAC. No additional facts or allegations have been added by Plaintiffs. As discussed, Judge Kim found those allegations deficient as Plaintiff failed to allege any of the ultimate facts showing alter ego liability and failed to allege unity of interest, domination and control, inadequate capitalization. (January 23, 2024 Minute Order). In sum, Plaintiffs completely failed to amend or modify their operative pleading in any manner or in compliance with Judge Kims ruling. In Plaintiffs opposition, Plaintiffs request leave to amend by suggesting three new facts, previously unknown, support the theory of alter ego between Vollero and Ivory Holdings. These facts are: (1) and (2) on August 16, 2016, two separate Deeds of Trust were recorded against the subject premises with Vollero as the Beneficiary and (3) Vollero, as an individual, performed the alleged remediation of the toxic chemicals which are alleged to have harmed Plaintiffs. Assuming the new facts found in Plaintiffs Opposition are true, Plaintiffs have not met their burden demonstrating how or in what manner these new allegations support of finding that a reasonable possibility exist for Plaintiffs to cure the defects and successfully pled a theory of alter ego. (Reeder v. Specialized Loan Servicing LLC (2020) 52 Cal.App.5th 795, 805.) These additional facts show no connection between Vollero and Ivory Holdings. Even with the inclusion of those three allegations, Plaintiffs operative pleading would fail to allege any of the ultimate facts showing an alter ego theory as set forth in Rutherford (e.g. allegations of unity of interest, domination and control, inadequate capitalization). 4. Ruling The Court sustains Defendant Volleros Demurrer without leave to amend. Defendant Volleros motion to strike is now moot.
Ruling
Luis Kutz, et al vs Jennifer Fribourgh, et al
Jul 11, 2024 |
23CV01711
23CV01711
KUTZ et al. v. FRIBOURGH et al.
(UNOPPOSED) PLAINTIFFS’ MOTIONS TO BE RELIEVED
The unopposed motions are denied without prejudice. Counsel must refile to reflect
correct upcoming hearing dates in the declarations and proposed orders.
Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal order
incorporating, verbatim, the language of any tentative ruling – or attaching and incorporating the
tentative by reference - or an order consistent with the announced ruling of the Court, in
accordance with California Rule of Court 3.1312. Such proposed order is required even if the
prevailing party submitted a proposed order prior to the hearing (unless the tentative is
simply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition of
sanctions following an order to show cause hearing, if a proposed order is not timely filed.
Page 1 of 1
Ruling
Dryden, Donna vs Tri Counties Bank
Jul 10, 2024 |
23CV03115
23CV03115 Dryden, Donna et al. v. Tri Counties Bank
EVENT: Plaintiffs’ Motion to Consolidate and Appoint Interim Class Counsel
Plaintiffs’ Motion to Consolidate and Appoint Interim Class Counsel is GRANTED. Defendant
shall file a responsive pleading within 60 days of the date of this order. The Court will sign the
proposed order with the noted modification.
Document
Patrick Strickland v. W.I.P. Club, Inc., Barry Mullineaux, Collective Hardware, Inc., John Bakhishi, Lina Kay, Hirukuni Sai, John C. Best, Frank Porco, Merlin Bobb-Willis, 150 Rft Varick Corp., 150 Rft Varick Basement Llc, W. & M. Operating, L.L.C., Aubrey Graham Drake a/k/a DRAKE, Allstar Security & Consulting, Inc., Christopher Maurice Brown a/k/a CHRIS BROWN
Apr 08, 2013 |
Anil Singh
|
Tort |
Tort |
153185/2013
Document
Melania Rodriguez and RYAN LUNT, as Parents and Natural Guardians of Z.L, Melania Rodriguez, Ryan Lunt Individually v. Nicholas James Buffin M.D., Valerie Lewis-Morris M.D., Emily Schmidt-Beuchat M.D., Hope S. Langer M.D., Youyin Choy M.D., Lois Brustman M.D., Susan Rothenberg M.D., Helaine Worrell M.D., Mount Sinai West, West Care Medical, P.C.,, Faculty Practice Associates-Mount Sinai Hospital,, Midtown Ob/Gyn
Mar 15, 2021 |
John J. Kelley
|
Torts - Medical, Dental, or Podiatrist Malpractice |
Torts - Medical, Dental, or Podiatrist Malpractice |
805086/2021
Preview
INDEX INDEX NO.NO. 162502/2015 162502/2015 FILED: TILED : NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 10/28/2019 10/13/2017 06:44 06:33 PM Pl NYSCEF DOC. NO.NO. 279 21 RECEIVED NYSCEF: RECEIVED NYSCEF: 10/13/2017 10/28/2019 NYSCEF DOC. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK IGREGORY WELCH and PRISCILLA Index No.: 162502/2015 WELCH, Summons Plaintiffs, -against- 260-261 MADISON AVENUE LLC, SKYLIFT CONTRACTOR CORP. and BAY CRANE SERVICE INC., Defendants. SKYLIFT CONTRACTOR CORP., Third-Party Plaintiff, v. MARINE & INDUSTRIAL SUPPLY COMPANY, INC., d/b/a MARINE & INDUSTRIAL TESTING SOLUTIONS; MARINE & INDUSTRIAL TESTING SOLUTIONS; HANES SUPPLY, INC., as successor-by-merger to and/or d/b/a PAUL'S WIRE ROPE & SLING; and PAUL'S WIRE ROPE & SLING, Third-Party Defendants. TO THE ABOVE-NAMED THIRD-PARTY DEFENDANTS: YOU ARE SUMMONED to answer the third-party complaint in this action and to serve plaintiffs' plaintiffs' a copy of your answer on the third-party and the attorneys within twenty (20) days after service of this summon, exclusive of the day of service (or within thirty (30) days after the service is complete if the summons and complaint are not personally delivered to you within the State of New York); and [continued on next page] 1 of 20 FILED:: [FILED NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 10/28/2019 10713/2017 06:44 06 : 33 PM INDEX INDEX NO. NO. 162502/2015 162502/2015 PM| NYSCEF NYSCEF DOC. DOC. NO. NO. 279 21 RECEIVED RECEIVED NYSCEF: NYSCEF: 10/28/2019 10/13/2017 in case of your failure to appear or answer, judgment will be taken against you default for the by relief demanded in the third-party complaint. Dated: New York, New York October 12, 2017 KAUFMAN DOLOWICH & VOLUCK, LLP Attorneys for Defendant/Third-Party Plaintiff Skylift Contractor Corp. By: SeptfE'Miller 20* 40 Exchange Place, Floor New York, New York 10005 (212) 485-9600 To: MARINE & 1NDUSTRIAL SUPPLY COMPANY, INC. 150 Virginia Street Mobile, Alabama 36603 MARINE & INDUSTRIAL TESTING SOLUTIONS % Marine & Industrial Supply Company, Inc. 150 Virginia Street Mobile, Alabama 36603 HANES SUPPLY, INC. 55 James E Casey Drive Buffalo, New York 14206 PAUL'S WIRE ROPE & SLING % Hanes Supply, Inc. 55 James E Casey Drive Buffalo, New York 14206 4829-6831-7521, v. 1 2 2 of 20 INDEX INDEX NO. NO. 162502/2015 162502/2015 FILED: [FŽLED: NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 10/28/2019 10/13/2017 06:44 06:33 PM PM) NYSCEF NYSCEF DOC. DOC. NO. NO. 279 21 RECEIVED RECEIVED NYSCEF: NYSCEF: 10/13/2017 10/28/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ........................======-----........................------x GREGORY WELCH and PRISCILLA WELCH, Plaintiff/Petitioner, - - 162502/2015 against Index No. 260-261 MADISON AVENUE LLC, et al. Defendant/Respondent. -----------------------------------------------======-¬----------x NOTICE OF COMMENCEMENT OF ACTION SUBJECT TO MANDATORY ELECTRONIC FILING PLEASE TAKE NOTICE that the matter captioned above has been commenced as an electronically filed case in the New York State Courts Electronic Filing System ("NYSCEF") as required by CPLR § 2111 and Uniform Rule § 202.5-bb (mandatory electronic filing).This notice is being served as required by that rule. NYSCEF is designed for the electronic filing of documents with the County Clerk and the court and for the electicñic service of those documents, court documents, and court notices upon counsel and unrepresented litigants who have consented to electronic filing. Electronic filing offers significant benefits for attomeys and litigants, permitting papers to be filed with the County Clerk and the court and served on other parties simply, convenieñtly, and quickly. NYSCEF case documents are filed with the County Clerk and the court by filing on the NYSCEF Website, which can be done at any time of the day or night on any day of the week. The documents are served automatically on allconsenting e-filers as soon as the document is upicaded to the website, which sends out an immediate email notification of the filing. The NYSCEF System charges no fees for filing, serving, or viewing the electroñic case record, nor does itcharge any fees to print any filed documents. Normal filing fees must be paid, but this can be done on-line. Partles represented by an attorney: An attomey representing a party who is served with this notice must either: 1) immediately record his or her representation within the e-filed matter on the NYSCEF site; or 2) file the Notice of Opt-Out form with the clerk of the court where this action is pêñding. Exemptions from mandatory e-filing are limited to attemeys who certify in good faith that they lack the computer hardware and/or scanner and/or internet connection or that they lack (along with all employees subject to their direction) the operational kñcwledge to comply with e-filing requirements. [Section 202.5-bb(e)] Parties not represented an attorney: Unrepresented litigants are exempt from e- by filing. They can serve and file documents In paper form and must be served with documents in paper form. However, an unrepresented litigant may participate In e-filing. Page 1 of 2 EFM-1 3 of 20 FILED: NEW YORK COUNTY CLERK CLERK 10/28/2019 10/13/2017 06:44 06:33 PM INDEX NO. INDEX NO. 162502/2015 162502/2015 FILED: NEW YORK COUNTY PM) NYSCEF DOC. NYSCEF DOC. NO.NO. 21279 RECEIVED NYSCEF: 10/13/2017 RECEIVED NYSCEF: 10/28/2019 For information on how to participate in e-filing, unrepresented litigants should contact the appropriate clerk In the court where the action was filed or visit www.nycourts.gov/efile- unrepresented. Unrepresented litigants also are encouraged to visit www.nycourthelp.qov or contact the Heip Center in the court where the action was filed. An unrepresented litigant who consects to e-filing may cease participation at any time. However, the other parties may continue to e-file their court documents in the case. For additional information about electronic filing and to create a NYSCEF account, visitthe NYSCEF website at www.nycourts.gov/efile or contact the NYSCEF Resource Center (phone: 646- 386-3033; e-mail: efile@nycourts.qov). october 12, 201,7 Dated: 40 Exchange Place, 20th Floor Signature Address Scott E. Miller New York, New York 10005 Name Kaufman Dolowich & Voluck, LLP (212) 485-9600 Firm Name Phone smiller@kdvlaw.com E-Mail Third-Party Defendants Named Above To: 913/15 Index # Page 2 of 2 EFM-1 4 of 20 INDEX INDEX NO. NO. 162502/2015 162502/2015 FILED: IFILED : NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 10/28/2019 10 /13/2017 006:44 6 : 33 PM Pli NYSCEF NYSCEF DOC. DOC. NO. NO. 279 21 RECEIVED RECEIVED NYSCEF: NYSCEF: 10/13/2017 10/28/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK GREGORY WELCH and PRISCILLA WELCH, Index No.: 162502/2015 Third-Party Complaint Plaintiffs, -against- 260-261 MADISON AVENUE LLC, SKYLIFT CONTRACTOR CORP. and BAY CRANE SERVICE INC., Defendants. SKYLIFT CONTRACTOR CORP., Third-Party Plaintiff, v. MARINE & INDUSTRIAL SUPPLY COMPANY, INC., d/b/a MARINE & INDUSTRIAL TESTING SOLUTIONS; MARINE & INDUSTRIAL TESTING SOLUTIONS; HANES SUPPLY, INC., as successor-by-merger to and/or d/b/a PAUL'S WIRE ROPE & SLING; and PAUL'S WIRE ROPE & SLING, Third-Party Defendants. Defendant/third-party plaintiff Skylift Contractor Corp. ("Skylift"), by its attorneys Kaufman Dolowich & Voluck, LLP, as and for itsthird-party complaint, alleges as follows, all upon information and belief: The Parties 1. At all times relevant hereto, Skylift was and stillis a corporation organized and existing under the laws of the State of New York. 2. At all times relevant hereto, third-party defendant Marine & Industrial Supply Company ("M&ISC") was and stillis a corporation organized and existing under the laws of the 5 of 20 INDEX INDEX NO. NO. 162502/2015 162502/2015 FILED:: [FILED NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 10/28/2019 10 /13/2017 06:44 0 6 :33 PM PM| NYSCEF NYSCEF DOC. DOC. NO. NO. 279 21 RECEIVED RECEIVED NYSCEF: NYSCEF: 10/13/2017 10/28/2019 State of Alabama. 3. At all times relevant hereto, M&ISC did and continues to do business under the name Marine & Industrial Testing Solutions. 4. At all times relevant hereto, third-party defendant Marine & Industrial Testing Solutions ("M&ITS") was and still is a corporation or other business entity organized and existing under the laws of the State of Alabama. 5. At all times relevant hereto, third-party defendant Hanes Supply, Inc. ("Hanes") was and stillis a corporation organized and existing under the laws of the State of New York. 6. At all times relevant hereto, third-party defendant Paul's Wire Rope & Sling ("Paul's") was a corporation organized and existing under the laws of the State of Connecticut. 7, On or about January 2, 2013, Hanes acquired the shares or equity in Paul's and became the successor-by-merger to the liabilities of Paul's. 8. On or about January 2, 2013, Paul's became an unincorporated division of Hanes and/or Hanes did business under the name Paul's Wire Rope & Sling. Jurisdiction 9. M&ISC regularly does business in the State of New York. 10. M&ISC derives substantial revenue from products used in the State of New York, or derives substantial revenue from interstate or international commerce, and expected or should reasonably have expected itstortious acts to have consequences in the State of New York. 11. M&ITS regularly does business in the State of New York. 12. M&ITS derives substantial revenue from products used in the State of New York, or derives substantial revenue from interstate or international commerce, and expected or should reasonably have expected itstortious acts to have consequences in the State of New York. 2 6 of 20 INDEX INDEX NO. NO. 162502/2015 162502/2015 FILED: FILED : NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 10/28/2019 10/13/2017 06:44 06:33 PM Pli NYSCEF NYSCEF DOC. DOC. NO. NO. 279 21 RECEIVED RECEIVED NYSCEF: NYSCEF: 10/13/2017 10/28/2019 13. Prior to Jañüary 2, 2013, Paul's derived substantial revenue from products used in the State of New York, or derived substantial revenue from interstate or international commerce, and expected or should rear-mhly have expected its tortious acts to have consequences in the State ofNew York. The Main Action 14. Plaintiffs Gregory Welch and Priscilla Welch commenced the main action in the Supreme Court of the State of New York against Skylift and other defendants for personal injuries allegedly sustained on May 31, 2015. A copy of plaintiff's summons and complaint in the main action is annexed hereto as Exhibit A. 15. Plaintiffs allege in that complaint that such injuries were sustained when a chiller unit that Skylift and other defendants were hoisting into the building at 261 Madison Avenue, 30°¹ New York, New York (the "Building"), fell from the floor. 16. Other defendants in the main action have or may assert cross-claims against Skylift in the main action. 17. That chiller unit fell when a sling used to rig the unit failed. 18. In its answer to the complaint, Skylift affirmatively alleges that, if any injuriess were sustained by the plaintiffs, such damages were caused by the negligence and culpable conduct of third-parties over whom Skylift had neither control nor responsibility. A copy of Skylift's answer is annexed hereto as Exhibit B. Product Liability Facts 19. That sling was designed, manufactured and placed into the stream of commerce by M&ISC. 3 7 of 20 INDEX INDEX NO. NO. 162502/2015 162502/2015 FILED: (FILED : NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 10/28/2019 10/13/2017 006:44 6 : 33 PM PM| NYSCEF NYSCEF DOC. DOC. NO. NO. 279 21 RECEIVED RECEIVED NYSCEF: NYSCEF: 10/13/2017 10/28/2019 20. That sling was designed, manufactured and placed into the stream of commerce by M&ITS. 21. That sling was distributed by Hanes. 22. That sling was distributed by Paul's. 23. M&ISC expressly and impliedly warranted and represented that the sling was suitable for rigging operations such as the one engaged in by Skylift, and was suitable for use with loads weighing greatly in excess of the chiller unit. 24. M&IST expressly and impliedly warranted and represented that the sling was suitable for rigging operations such as the one engaged in by Skylift, and was suitable for use with loads weighing greatly in excess of the chiller unit. 25. Hanes expressly and impliedly warranted and represcated that the sling was suitable for rigging operations such as the one engaged in by Skylift, and was suitable for use with loads weighing greatly in excess of the chiller unit. 26. Paul's expressly and impliedly warranted and represented that the sling was suitable for rigging operations such as the one engaged in by Skylift, and was suitable for use with loads weighing greatly in excess of the chiller unit. 27. Skylift relied on those warranties and representations when using the sling to rig the chiller unit. 28. However, due to a design defect, the sling was not suitable for use with loads of the weight of the chiller unit. 29. However, due to a manufacturing defect, the sling was not suitable for use with loads of the weight of the chiller unit. 4 8 of 20 INDEX INDEX NO. NO. 162502/2015 162502/2015 FILED: FILED : NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 10/28/2019 10 /13/2017 06:44 0 6 :33 PM PM NYSCEF NYSCEF DOC. DOC. NO. NO. 279 21 RECEIVED RECEIVED NYSCEF: NYSCEF: 10/13/2017 10/28/2019 30. However, due to the negligence of M&ITS in designing and manufacturing the sling, the sling was not suitable for use with loads of the weight of the chiller unit. plaintiffs' 31. The accident referred to in the complaint was caused by the breach of warranties and misrepresentations, negligence, defective design and/or defective manufacture and other culpable conduct of M&ISC, which is strictly liable therefore. plaintiffs' 32. The accident referred to in the complaint was caused by the breach of warranties and misrepresentations, negligence, defective design and/or defective manufacture and other culpable conduct of M&IST, which is strictly liable therefore. plaintiffs' 33. The accident referred to in the complaint was caused by the breach of warranties and misrepresentations, negligence, defective design and/or defective manufacture and other culpable conduct of Hanes, which is strictly liable therefore. plaintiffs' 34. The accident referred to in the complaint was caused by the breach of warranties and misrepresentations, negligence, defective design and/or defective manufacture and other culpable conduct of Paul's, which is strictly liable therefore. First Cause of Action Against All Third-Party Defendants (for Apportionment) 35. Skylift repeats and realleges, with the same force and effect as though fully set "1" "34" forth herein, every allegation contained in paragraphs through of this third-party complaint. 36. If the plaintiffs sustained the injuries and damages in the manner and at the time and place alleged, and if it is found that Skylift is liable to plaintiffs herein, all of which is specifically denied, then Skylift, on the basis of apportionment of responsibility for the alleged occurreñce, is entitled to contribution from all third-party defendants to pay for all or part of any 5 9 of 20 INDEX INDEX NO. NO. 162502/2015 162502/2015 FILED:: [FILED NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 10/28/2019 10 /13/2017 006:44 6 :33 PM PM NYSCEF NYSCEF DOC. DOC. NO. NO. 279 21 RECEIVED RECEIVED NYSCEF: NYSCEF: 10/13/2017 10/28/2019 verdict or judgment that plaintiff may recover against Skylift proportionate to each party's actual negligence or culpable conduct. Second Cause of Action Against All Third-Party Defendants (Contractual and Common Law Indemnification and Contribution) 37. Skylift repeats and realleges, with the same force and effect as though fully set "1" "36" forth herein, every allegation contained in paragraphs through of this third-party complaint. 38. If the plaintiffs sustained the damages in the manner and at the time and place alleged, and if it is found that Skylift is liable to plaintiffs herein, all of which is specifically denied, then Skylift is entitled to contractual and/or co1union law indemnification and/or contribution from any judgment or verdict rendered against itfrom all third-party defendants. WHEREFORE, Defendant/third-party plaintiff Skylift Contractor Corp., on the basis of apportionment of responsibility, common-law indemnification, contractual indemnification and/or contribution, demands judgment against third-party defendants Marine & Industrial Supply Company, Inc., Marine & Industrial Testing Solutions, Hanes Supply, Inc. and Paul's Wire Rope & Sling for all or part of any verdict or judgment against Skylift, together with the costs and disbursements of this action, and for such other and further relief as the Court may deem just and proper. Dated: New York, New York October 12, 2017 KAUFMAN DOLOWICH & VOLUCK, LLP Attorneys for Defendant/Third-Party Plaintiff Skylift Contractor£orp. By: Scott E. Mi e 6 10 of 20 FILED:: [FILED NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 10/28/2019 10/13/2017 06:44 06:33 PM PM) INDEX INDEX NO. NO. 162502/2015 1 62502/2015 NYSCEF NYSCEF DOC. DOC. NO. NO. 279 21 RECEIVED RECEIVED NYSCEF: NYSCEF: 10/28/2019 10/13/2017 20* 40 Exchange Place, Floor New York, New York 10005 (212) 485-9600 4832-0267-4257,v. I 7 11 of 20 FILED: NEW YORK COUNTY CLERK 10/13/2017 10/28/2019 06:33 06:44 PM INDEX NO. 162502/2015 NYSCEF DOC. NO. 21 279 RECEIVED NYSCEF: 10/13/2017 10/28/2019 12 of 20 FILED: NEW YORKYORK COUNTYCOUNTY CLERK CLERK 10/28/2019 10/13/2017 06:44 06:33 PM PN] INDEX NO. INDEX NO. 162502/2015 162502/2015 FILED : NEW NYSCEF DOC. NYSCEF DOC. NO. NO. 21279 RECEIVED NYSCEF: 10/13/2017 RECEIVED NYSCEF: 10/28/2019 INDEX NO. 162502/2015 |FILED: .NEW YORK COUNTY CLERK 03/24 /2016 03 : 42 PM| NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 03/24/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -______________-____........----------··-------------·------------X GREGORY WELCH and PRISCILLA WELCH, Index No.: 162502/2015 Plaintiffs, VERIFIED ANSWER -against- 260-261 MADISON AVENUE LLC, SKYLIFT CONTRACTOR CORP. and BAY CRANE SERVICE