Preview
FILED: NEW YORK COUNTY CLERK 12/29/2022 04:06 PM INDEX NO. 150253/2017
NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 12/29/2022
EXHIBIT F
FILED: NEW YORK COUNTY CLERK 02/28/2018
12/29/2022 05:38
04:06 PM INDEX NO. 150253/2017
NYSCEF DOC. NO. 23
93 RECEIVED NYSCEF: 02/28/2018
12/29/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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JEFFREY GOLDSTEIN and KELLIE GOLDSTEIN, Index No.: 150253/2017
Plaintiff,
AMENDED VERIFIED
-against- COMPLAINT PURSUANT
TO CPLR §1009
THE CITY OF NEW YORK, THE NEW YORK CITY
DEPARTMENT OF TRANSPORTATION,
CONSOLIDATED EDISON COMPANY OF NEW
YORK, INC. AND CAC INDUSTRIES, INC.,
Defendants.
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CONSOLIDATED EDISON COMPANY OF Third-Party Index No.: 596024/17
NEW YORK, INC.,
Third-Party Plaintiff,
-against-
CAC INDUSTRIES, INC.,
Third-Party Defendant
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Plaintiffs JEFFREY GOLDSTEIN and KELLIE GOLDSTEIN, by and through their
attorneys LERNER, ARNOLD & WINSTON, LLP, as and for their Verified Complaint, herein
allege upon information and belief the following:
PARTIES
1. At all times hereinafter mentioned, plaintiff JEFFREY GOLDSTEIN was and
stillis an individual over the age of eighteen and a resident and citizen of the State of New York,
County of New York.
WER ARNOLD.WINSION
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2. At all times hereinafter mentioned, plaintiff KELLIE GOLDSTEIN was and still
is an individual over the age of eighteen and a resident and citizen of the State of New York,
County of New York.
3. At all times hereinafter mentioned, defendant, THE CITY OF NEW YORK
("CITY"
("CITY"), was and still is a municipal corporation organized and existing under and by virtue
of the laws of the State of New York.
4. At all times hereinafter mentioned, defendant, THE NEW YORK CITY
DEPARTMENT OF TRANSPORTATION ("DOT") was and stillis a municipal corporation
organized and existing under and by virtue of the laws of the State of New York.
5. At all times hereinafter mentioned, defendant, DOT was and stillis a department
within the CITY.
6. At all times hereinafter mentioned, defendant CONSOLIDATED EDISON
COMPANY OF NEW YORK, INC. (hereinafter "CON ED") was and stillis a domestic
corporation, organized and existing under and by virtue of the laws of the State of New York.
7. At all times hereinafter mentioned, defendant CAC INDUSTRIES, INC.
"CONTRACTOR"
(hereinafter "CONTRACTOR") was and stillis a corporation duly organized and existing under
and by virtue of the laws of the State of New York.
8. At all times hereinafter mentioned, defendant CONTRACTOR was and is a
corporation licensed to do business in the State of New York with an office at 54-08 Vernon
Boulevard, Long Island City, New York 1 1 101.
VENUE
9. Plaintiffs have properly selected New York County as the venue for this action
pursuant to CPLR §504(3) as plaintiffs have brought suitagainst the defendants in the county where
WER•ARNOLD-WINSTON
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the injuries occurred ("...the place of trialof all actions against counties, cities,town, villages,
school districts and district corporations or any of their officers, boards or departments shall be...
in the county within the city in which the cause of action arose...").
PRELIMINARY STATEMENT
10. On February 22, 2016, plaintiff JEFFREY GOLDSTEIN was a lawfully
90' 5d'
operating a motorized foot scooter at the intersection roadway of Street and Avenue, in
the City, County and State of New York. While JEFFREY GOLDSTEIN, was operating his
motorized foot scooter at said intersection, he was caused to fall to the roadway due to a defect
adjacent to a Consolidated Edison manhole cover and was caused to sustain severe injuries.
11. Plaintiff was caused to sustain severe injuries including a fracture to his left
clavicle, a fracture to his leftelbow, left wrist, and ribs, as well as neck, shoulder and back pain,
swelling, stiffness, weakness, persistent headaches, multiple surgical procedures, psychological
damage, medical expenses, lost wages and benefits all due to the negligence, gross negligence
and/or carelessness of the defendants, CITY, DOT, CON ED and/or CONTRACTOR.
PRELIMINARY FACTS
12. On February 22, 2016, plaintiff JEFFREY GOLDSTEIN was lawfully operating
90' 5th
a motorized foot scooter in the roadway at the intersection of Street and Avenue, in the
City, County and State of New York.
13. Plaintiff JEFFREY GOLDSTEIN was caused to suffer serious personal injuries
while operating said motorized foot scooter when itcame into contact with a defect in the
roadway.
INER•ARNOLD-WINSTON
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9d' 5th
14. At all relevant times, the roadways of Street and Avenue, including the
intersection thereof, are public roadways within the confines of the City, County and State of
New York.
15. At allrelevant times, defendant CITY controlled and was and stillisresponsible for
maintaining the public streets, roadways, sidewalks and the appurtenances thereon within the City
of New York.
16. At all relevant times, and prior to February 22, 2016, defendant CITY, owned
90' 5th
the roadway at Street and Avenue, in the City, County, and State of New York.
9th
17. At all relevant times, defendant CITY constructed the roadway at Street and
5d'
Avenue, in the City, County, and State of New York.
9th 5d'
18. At all relevant times, defendant CITY controlled the roadway at Street and
Avenue, in the City, County, and State of New York.
9d'
19. At all relevant times, defendant CITY maintained the roadway at Street and
5d'
Avenue, in the City, County, and State of New York.
9d' 50'
20. At all relevant times, defendant CITY repaired the roadway at Street and
Avenue, in the City, County, and State of New York.
9th 50,
21. At all relevant times, defendant CITY managed the roadway at Street and
Avenue, in the City, County, and State of New York.
9d' 5th
22. At all relevant times, defendant CITY operated the roadway at Street and
Avenue, in the City, County, and State of New York.
23. At all relevant times, defendant CITY inserted manhole cover(s) [and
9d' 5d'
immediately surrounding asphalt] imbedded in the roadway at Street and Avenue, in the
City, County, and State of New York.
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24. At all relevant times, defendant CITY maintained manhole cover(s) [and
9th 5d'
immediately surrounding asphalt] imbedded in the roadway at Street and Avenue, in the
City, County, and State of New York.
25. At all times hereinafter mentioned, subsequent to the February 22, 2016 incident,
defendant CITY by its agents, servants and/or employees made subsequent repairs to the
9d' 5d'
roadway at Street and Avenue, in the City, County and State of New York.
26. Prior to the February 22, 2016 incident, defendant CITY received prior written
9d' 5d'
notice complaints regarding the roadway at Street and Avenue, in the City, County, and
State of New York.
27. At allrelevant times, defendant DOT controlled and was and stillis responsible for
maintaining the public streets, roadways, sidewalks and the appurtenances thereon within the City
of New York.
28. At all relevant times, and prior to February 22, 2016, defendant DOT, owned the
90' 5d'
roadway at Street and Avenue, in the City, County, and State of New York.
902
29. At all relevant times, defendant DOT constructed the roadway at Street and
5d'
Avenue, in the City, County, and State of New York.
90' 50'
30. At allrelevant times, defendant DOT controlled the roadway at Street and
Avenue, in the City, County, and State of New York.
9th
31. At all relevant times, defendant DOT maintained the roadway at Street and
5d'
Avenue, in the City, County, and State of New York.
902 5d'
32. At all relevant times, defendant DOT repaired the roadway at Street and
Avenue, in the City, County, and State of New York.
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90' 5th
33. At all relevant times, defendant DOT managed the roadway at Street and
Avenue, in the City, County, and State of New York.
90' 5d'
34. At allrelevant times, defendant DOT operated the roadway at Street and
Avenue, in the City, County, and State of New York.
35. At all relevant times, defendant DOT inserted manhole cover(s) [and
902 5d'
immediately surrounding asphalt] imbedded in the roadway at Street and Avenue, in the
City, County, and State of New York.
36. At all relevant times, defendant DOT maintained manhole cover(s) [and
90' 5th
immediately surrounding asphalt] imbedded in the roadway at Street and Avenue, in the
City, County, and State of New York.
37. At all relevant times, subsequent to the February 22, 2016 incident, defendant
9th
DOT by its agents, servants and/or employees made subsequent repairs to the roadway at
5th
Street and Avenue, in the City, County and State of New York.
38. Prior to the February 22, 2016 incident, defendant DOT received prior written
9d' 50'
notice complaints regarding the roadway at Street and Avenue, in the City, County, and
State of New York.
39. At allrelevant times, defendant CON ED controlled and was and still
isresponsible
for maintaining the public streets, roadways, sidewalks and the appurtenances surrounding its
manhole covers within the City of New York.
40. At all relevant times, defendant CON ED maintained the roadway surrounding
90' 5d'
its manhole covers at Street and Avenue, in the City, County, and State of New York.
41. At all relevant times, defendant CON ED repaired the roadway surrounding its
90' 501
manhole covers at Street and Avenue, in the City, County, and State of New York.
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42. At all relevant times, defendant CON ED managed the roadway surrounding its
90' 5d'
manhole covers at Street and Avenue, in the City, County, and State of New York.
43. At all relevant times, defendant CON ED operated the roadway surrounding its
90' 5d'
manhole covers at Street and Avenue, in the City, County, and State of New York.
44. At all relevant times, defendant CON ED inserted manhole cover(s) [and
90' 5d'
immediately surrounding asphalt] imbedded in the roadway at Street and Avenue, in the
City, County, and State of New York.
45. At all relevant times, defendant CON ED maintained manhole cover(s) [and
90' 50'
immediately surrounding asphalt] imbedded in the roadway at Street and Avenue, in the
City, County, and State of New York.
46. At all relevant times, subsequent to the February 22, 2016 incident, defendants
CON ED by its agents, servants and/or employees made subsequent repairs to the roadway at
90' 5th
Street and Avenue, in the City, County and State of New York.
47. Prior to the February 22, 2016 incident, defendant CON ED received prior
90' 5th
written notice complaints regarding the roadway at Street and Avenue, in the City, County,
and State of New York.
48. At all relevant times, defendant CONTRACTOR controlled and was and stillis
responsible for maintaining the public streets, roadways, sidewalks and the appurtenances
thereon within the City of New York.
90'
49. At allrelevant times, defendant CONTRACTOR constructed the roadway at
5d'
Street and Avenue, in the City, County, and State of New York.
90'
50. At all relevant times, defendant CONTRACTOR controlled the roadway at
5d'
Street and Avenue, in the City, County, and State of New York.
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90'
5 1. At all relevant times, defendant CONTRACTOR maintained the roadway at
5th
Street and Avenue, in the City, County, and State of New York.
9d'
52. At all relevant times, defendant CONTRACTOR repaired the roadway at
5d'
Street and Avenue, in the City, County, and State of New York.
9th
53. At all relevant times, defendant CONTRACTOR managed the roadway at
5d'
Street and Avenue, in the City, County, and State of New York.
9th
54. At all relevant times, defendant CONTRACTOR operated the roadway at
5d'
Street and Avenue, in the City, County, and State of New York.
55. At all relevant times, defendant CONTRACTOR inserted manhole cover(s) [and
90' 5d'
immediately surrounding asphalt] imbedded in the roadway at Street and Avenue, in the
City, County, and State of New York.
56. At all.relevant times, defendant CONTRACTOR maintained manhole cover(s)
9d' 5d'
[and immediately surrounding asphalt] imbedded in the roadway at Street and Avenue, in
the City, County, and State of New York.
57. At all relevant times, subsequent to the February 22, 2016 incident, defendant
CONTRACTOR by its agents, servants and/or employees made subsequent repairs to the
9d' 5d'
roadway at Street and Avenue, in the City, County and State of New York.
58. Prior to the February 22, 2016 incident, defendant CONTRACTOR received
902 5d'
prior written notice complaints regarding the roadway at Street and Avenue, in the City,
County, and State of New York.
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AS AND FOR A FIRST CAUSE OF ACTION AGAINST
DEFENDANT CITY AND DOT
59. Plaintiffs repeat, reiterate and reallege each and every allegation contained in
"1"
paragraphs numbered through "58", inclusive, of the Verified Complaint, with the same
force and effect as though more fully set forth herein at length.
60. At all times hereinafter mentioned, defendants CITY and DOT had a duty to
9d¹ 5d'
maintain the roadway, and appurtenances thereon, at Street and Avenue, in the City,
County, and State of New York, in a reasonably safe condition.
61. At alltimes hereinafter mentioned, defendants CITY and DOT failed to properly
90' 501
maintain the roadway, and appurtenances thereon, at Street and Avenue, in the City,
County, and State of New York, in a reasonably safe condition.
62. The unreasonably unsafe condition of the roadway, and appurtenances thereon,
90' 5d'
at Street and Avenue, in the City, County, and State of New York, was due wholly to the
negligence, gross negligence, recklessness and/or carelessness of defendants CITY and DOT.
63. Defendants CITY and DOT were careless, negligent, grossly negligent and/or
reckless in that they, inter alia (a) failed to maintain the roadway, and appurtenances thereon, at
90' 5d'
Street and Avenue, in the City, County, and State of New York, in a reasonably safe
condition; (b) failed to notify and/or warn pedestrians of the dangerous and/or defective conditions
existing thereat; (c) failed to provide an alternate route for pedestrians in the subject area; (d) created
and/or permitted a dangerous, defective and/or unsafe condition to exist in the subject area; (e)
failed to correct the dangerous, defective and/or unsafe condition they created and existed in the
subject area; (f) failed to remove the dangerous, defective and/or unsafe condition that existed in
the subject area although the defendants, and/or their agents, servants and/or employees knew or
should have known of the existence of the dangerous, defective and/or unsafe condition of the
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subject area; (g) failed to inspect and/or properly inspect the subject area; (h) failed to ensure and/or
properly ensure the safety of the subject area; (i)made faulty temporary repairs prior to Februaiy
22, 2016; (j) violated those statutes, ordinances, rules and regulations relating construction and
maintenance of the subject area; (k) failed to exercise the degree of care required under the
circumstances; and (1) and in that defendants were otherwise careless, negligent, grossly
negligent and reckless.
64. Solely by reason of the carelessness, negligence, gross negligence and
recklessness of defendant CITY and DOT, through their agents, servants and/or employees, and
as a direct and proximate cause thereof, plaintiff JEFFREY GOLDSTEIN was caused to suffer
serious personal injuries as well as mental and emotional pain, anguish and distress. All of the
above listed injuries are believed to be permanent in nature.
65. Defendants, CITY and DOT through their agents, servants and/or employees had
both actual and constructive knowledge and notice of the dangerous, defective and/or hazardous
conditions of the subject area in that such conditions were caused by defendants CITY and DOT
through their agents, servants and/or employees, and/or the dangerous, defective and/or unsafe
condition had existed for a sufficient length of time prior to the happening of the subject incident,
that the defendants CITY and DOT through their agents, servants and/or employees should have
corrected the defective condition.
66. The incident herein and the injuries resulting there from were due solely and
wholly to the carelessness, negligence, gross negligence and recklessness of the defendants
CITY and DOT's conduct, through their agents, servants and/or employees and without any
fault or want of care on behalf of the plaintiff JEFFREY GOLDSTEIN.
9d' 5"'
67. The roadway, and appurtenances thereon, at Street and Avenue, in the City,
County, and State of New York, . where plaintiff JEFFREY GOLDSTEIN was injured, were
.NER-ARNOLD
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improperly, inadequately, carelessly, negligently, gross negligently and recklessly constructed,
configured, designed, managed, supervised, inspected, controlled, repaired and maintained such
that itconstituted a severe hazard, a trap for the unwary, a public and private nuisance and were
in violation of all applicable codes, rules and ordinances.
68. By reason of the foregoing, plaintiff JEFFREY GOLDSTEIN sustained serious
personal injuries and is entitled to damages of an amount to be determined by a New York
County Jury at the time of trial.
69. By reason of the foregoing, plaintiff JEFFREY GOLDSTEIN was caused to
suffer damages that exceed the jurisdictional limits of all lower Courts that would otherwise
have jurisdiction herein.
70. The limitations on liability set forth in CPLR 1601 do not apply by reason of one
or more of the exemptions set forth in CPLR 1602.
AS AND FOR A SECOND CAUSE OF ACTION AGAINST
DEFENDANT CON ED
71. Plaintiffs repeat, reiterate and reallege each and every allegation contained in
"1"
paragraphs numbered through "70", inclusive, of the Verified Complaint, with the same
force and effect as though more fully set forth herein at length.
72. At all times hereinafter mentioned, defendant CON ED had a duty to maintain
9d' 5d'
the roadway, and appurtenances thereon, surrounding its manhole covers at Street and
Avenue, in the City, County, and State of New York, in a reasonably safe condition.
73. At all times hereinafter mentioned, defendant CON ED failed to properly
90'
maintain the roadway, and appurtenances thereon surrounding its manhole covers at Street
5d'
and Avenue, in the City, County, and State of New York, in a reasonably safe condition.
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74. The unreasonably unsafe condition of the roadway, and appurtenances thereon
902 5d'
surrounding its manhole covers at Street and Avenue, in the City, County, and State of
New York, were due wholly to the negligence, gross negligence, recklessness and/or
carelessness of defendant CON ED.
75. Defendant CON ED was careless, negligent, grossly negligent and/or reckless in
that it, inter alia (a) failed to maintain the roadway, and appurtenances thereon surrounding its
90' 5d'
manhole covers at Street and Avenue, in the City, County, and State of New York, in a
reasonably safe condition; (b) failed to notify and/or warn pedestrians of the dangerous and/or
defective conditions existing thereat; (c) failed to provide an alternate route for pedestrians in the
subject area; (d) created and/or permitted a dangerous, defective and/or unsafe condition to exist in
the subject area; (e) failed to correct the dangerous, defective and/or unsafe condition they created
and existed in the subject area; (f)failed to remove the dangerous, defective and/or unsafe condition
that existed in the subject area although the defendant, and/or itsagents, servants and/or employees
knew or should have known of the existence of the dangerous, defective and/or unsafe condition
of the subject area; (g) failed to inspect and/or properl
Preview
FILED: NEW YORK COUNTY CLERK 12/29/2022 04:06 PM INDEX NO. 150253/2017 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 12/29/2022 EXHIBIT F FILED: NEW YORK COUNTY CLERK 02/28/2018 12/29/2022 05:38 04:06 PM INDEX NO. 150253/2017 NYSCEF DOC. NO. 23 93 RECEIVED NYSCEF: 02/28/2018 12/29/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------------------------------------------------------X JEFFREY GOLDSTEIN and KELLIE GOLDSTEIN, Index No.: 150253/2017 Plaintiff, AMENDED VERIFIED -against- COMPLAINT PURSUANT TO CPLR §1009 THE CITY OF NEW YORK, THE NEW YORK CITY DEPARTMENT OF TRANSPORTATION, CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. AND CAC INDUSTRIES, INC., Defendants. ——————————— ------------------------------------------------------------------X CONSOLIDATED EDISON COMPANY OF Third-Party Index No.: 596024/17 NEW YORK, INC., Third-Party Plaintiff, -against- CAC INDUSTRIES, INC., Third-Party Defendant ------------------------------------------------------------------X Plaintiffs JEFFREY GOLDSTEIN and KELLIE GOLDSTEIN, by and through their attorneys LERNER, ARNOLD & WINSTON, LLP, as and for their Verified Complaint, herein allege upon information and belief the following: PARTIES 1. At all times hereinafter mentioned, plaintiff JEFFREY GOLDSTEIN was and stillis an individual over the age of eighteen and a resident and citizen of the State of New York, County of New York. WER ARNOLD.WINSION I 1 of 19 FILED: NEW YORK COUNTY CLERK 02/28/2018 12/29/2022 05:38 04:06 PM INDEX NO. 150253/2017 NYSCEF DOC. NO. 23 93 RECEIVED NYSCEF: 02/28/2018 12/29/2022 2. At all times hereinafter mentioned, plaintiff KELLIE GOLDSTEIN was and still is an individual over the age of eighteen and a resident and citizen of the State of New York, County of New York. 3. At all times hereinafter mentioned, defendant, THE CITY OF NEW YORK ("CITY" ("CITY"), was and still is a municipal corporation organized and existing under and by virtue of the laws of the State of New York. 4. At all times hereinafter mentioned, defendant, THE NEW YORK CITY DEPARTMENT OF TRANSPORTATION ("DOT") was and stillis a municipal corporation organized and existing under and by virtue of the laws of the State of New York. 5. At all times hereinafter mentioned, defendant, DOT was and stillis a department within the CITY. 6. At all times hereinafter mentioned, defendant CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. (hereinafter "CON ED") was and stillis a domestic corporation, organized and existing under and by virtue of the laws of the State of New York. 7. At all times hereinafter mentioned, defendant CAC INDUSTRIES, INC. "CONTRACTOR" (hereinafter "CONTRACTOR") was and stillis a corporation duly organized and existing under and by virtue of the laws of the State of New York. 8. At all times hereinafter mentioned, defendant CONTRACTOR was and is a corporation licensed to do business in the State of New York with an office at 54-08 Vernon Boulevard, Long Island City, New York 1 1 101. VENUE 9. Plaintiffs have properly selected New York County as the venue for this action pursuant to CPLR §504(3) as plaintiffs have brought suitagainst the defendants in the county where WER•ARNOLD-WINSTON 2 2 of 19 FILED: NEW YORK COUNTY CLERK 02/28/2018 12/29/2022 05:38 04:06 PM INDEX NO. 150253/2017 I NYSCEF DOC. NO. 23 93 RECEIVED NYSCEF: 02/28/2018 12/29/2022 the injuries occurred ("...the place of trialof all actions against counties, cities,town, villages, school districts and district corporations or any of their officers, boards or departments shall be... in the county within the city in which the cause of action arose..."). PRELIMINARY STATEMENT 10. On February 22, 2016, plaintiff JEFFREY GOLDSTEIN was a lawfully 90' 5d' operating a motorized foot scooter at the intersection roadway of Street and Avenue, in the City, County and State of New York. While JEFFREY GOLDSTEIN, was operating his motorized foot scooter at said intersection, he was caused to fall to the roadway due to a defect adjacent to a Consolidated Edison manhole cover and was caused to sustain severe injuries. 11. Plaintiff was caused to sustain severe injuries including a fracture to his left clavicle, a fracture to his leftelbow, left wrist, and ribs, as well as neck, shoulder and back pain, swelling, stiffness, weakness, persistent headaches, multiple surgical procedures, psychological damage, medical expenses, lost wages and benefits all due to the negligence, gross negligence and/or carelessness of the defendants, CITY, DOT, CON ED and/or CONTRACTOR. PRELIMINARY FACTS 12. On February 22, 2016, plaintiff JEFFREY GOLDSTEIN was lawfully operating 90' 5th a motorized foot scooter in the roadway at the intersection of Street and Avenue, in the City, County and State of New York. 13. Plaintiff JEFFREY GOLDSTEIN was caused to suffer serious personal injuries while operating said motorized foot scooter when itcame into contact with a defect in the roadway. INER•ARNOLD-WINSTON 3 3 of 19 FILED: NEW YORK COUNTY CLERK 02/28/2018 12/29/2022 05:38 04:06 PM INDEX NO. 150253/2017 NYSCEF DOC. NO. 23 93 RECEIVED NYSCEF: 02/28/2018 12/29/2022 9d' 5th 14. At all relevant times, the roadways of Street and Avenue, including the intersection thereof, are public roadways within the confines of the City, County and State of New York. 15. At allrelevant times, defendant CITY controlled and was and stillisresponsible for maintaining the public streets, roadways, sidewalks and the appurtenances thereon within the City of New York. 16. At all relevant times, and prior to February 22, 2016, defendant CITY, owned 90' 5th the roadway at Street and Avenue, in the City, County, and State of New York. 9th 17. At all relevant times, defendant CITY constructed the roadway at Street and 5d' Avenue, in the City, County, and State of New York. 9th 5d' 18. At all relevant times, defendant CITY controlled the roadway at Street and Avenue, in the City, County, and State of New York. 9d' 19. At all relevant times, defendant CITY maintained the roadway at Street and 5d' Avenue, in the City, County, and State of New York. 9d' 50' 20. At all relevant times, defendant CITY repaired the roadway at Street and Avenue, in the City, County, and State of New York. 9th 50, 21. At all relevant times, defendant CITY managed the roadway at Street and Avenue, in the City, County, and State of New York. 9d' 5th 22. At all relevant times, defendant CITY operated the roadway at Street and Avenue, in the City, County, and State of New York. 23. At all relevant times, defendant CITY inserted manhole cover(s) [and 9d' 5d' immediately surrounding asphalt] imbedded in the roadway at Street and Avenue, in the City, County, and State of New York. NER-ARNOLD•WINSTON 4 4 of 19 FILED: NEW YORK COUNTY CLERK 02/28/2018 12/29/2022 05:38 04:06 PM INDEX NO. 150253/2017 NYSCEF DOC. NO. 23 93 RECEIVED NYSCEF: 02/28/2018 12/29/2022 24. At all relevant times, defendant CITY maintained manhole cover(s) [and 9th 5d' immediately surrounding asphalt] imbedded in the roadway at Street and Avenue, in the City, County, and State of New York. 25. At all times hereinafter mentioned, subsequent to the February 22, 2016 incident, defendant CITY by its agents, servants and/or employees made subsequent repairs to the 9d' 5d' roadway at Street and Avenue, in the City, County and State of New York. 26. Prior to the February 22, 2016 incident, defendant CITY received prior written 9d' 5d' notice complaints regarding the roadway at Street and Avenue, in the City, County, and State of New York. 27. At allrelevant times, defendant DOT controlled and was and stillis responsible for maintaining the public streets, roadways, sidewalks and the appurtenances thereon within the City of New York. 28. At all relevant times, and prior to February 22, 2016, defendant DOT, owned the 90' 5d' roadway at Street and Avenue, in the City, County, and State of New York. 902 29. At all relevant times, defendant DOT constructed the roadway at Street and 5d' Avenue, in the City, County, and State of New York. 90' 50' 30. At allrelevant times, defendant DOT controlled the roadway at Street and Avenue, in the City, County, and State of New York. 9th 31. At all relevant times, defendant DOT maintained the roadway at Street and 5d' Avenue, in the City, County, and State of New York. 902 5d' 32. At all relevant times, defendant DOT repaired the roadway at Street and Avenue, in the City, County, and State of New York. NER•ARNOLD •WINSTON 5 5 of 19 FILED: NEW YORK COUNTY CLERK 02/28/2018 12/29/2022 05:38 04:06 PM INDEX NO. 150253/2017 NYSCEF DOC. NO. 23 93 RECEIVED NYSCEF: 02/28/2018 12/29/2022 90' 5th 33. At all relevant times, defendant DOT managed the roadway at Street and Avenue, in the City, County, and State of New York. 90' 5d' 34. At allrelevant times, defendant DOT operated the roadway at Street and Avenue, in the City, County, and State of New York. 35. At all relevant times, defendant DOT inserted manhole cover(s) [and 902 5d' immediately surrounding asphalt] imbedded in the roadway at Street and Avenue, in the City, County, and State of New York. 36. At all relevant times, defendant DOT maintained manhole cover(s) [and 90' 5th immediately surrounding asphalt] imbedded in the roadway at Street and Avenue, in the City, County, and State of New York. 37. At all relevant times, subsequent to the February 22, 2016 incident, defendant 9th DOT by its agents, servants and/or employees made subsequent repairs to the roadway at 5th Street and Avenue, in the City, County and State of New York. 38. Prior to the February 22, 2016 incident, defendant DOT received prior written 9d' 50' notice complaints regarding the roadway at Street and Avenue, in the City, County, and State of New York. 39. At allrelevant times, defendant CON ED controlled and was and still isresponsible for maintaining the public streets, roadways, sidewalks and the appurtenances surrounding its manhole covers within the City of New York. 40. At all relevant times, defendant CON ED maintained the roadway surrounding 90' 5d' its manhole covers at Street and Avenue, in the City, County, and State of New York. 41. At all relevant times, defendant CON ED repaired the roadway surrounding its 90' 501 manhole covers at Street and Avenue, in the City, County, and State of New York. NER-ARNOLD-WINSTON 6 6 of 19 FILED: NEW YORK COUNTY CLERK 02/28/2018 12/29/2022 05:38 04:06 PM INDEX NO. 150253/2017 NYSCEF DOC. NO. 23 93 RECEIVED NYSCEF: 02/28/2018 12/29/2022 42. At all relevant times, defendant CON ED managed the roadway surrounding its 90' 5d' manhole covers at Street and Avenue, in the City, County, and State of New York. 43. At all relevant times, defendant CON ED operated the roadway surrounding its 90' 5d' manhole covers at Street and Avenue, in the City, County, and State of New York. 44. At all relevant times, defendant CON ED inserted manhole cover(s) [and 90' 5d' immediately surrounding asphalt] imbedded in the roadway at Street and Avenue, in the City, County, and State of New York. 45. At all relevant times, defendant CON ED maintained manhole cover(s) [and 90' 50' immediately surrounding asphalt] imbedded in the roadway at Street and Avenue, in the City, County, and State of New York. 46. At all relevant times, subsequent to the February 22, 2016 incident, defendants CON ED by its agents, servants and/or employees made subsequent repairs to the roadway at 90' 5th Street and Avenue, in the City, County and State of New York. 47. Prior to the February 22, 2016 incident, defendant CON ED received prior 90' 5th written notice complaints regarding the roadway at Street and Avenue, in the City, County, and State of New York. 48. At all relevant times, defendant CONTRACTOR controlled and was and stillis responsible for maintaining the public streets, roadways, sidewalks and the appurtenances thereon within the City of New York. 90' 49. At allrelevant times, defendant CONTRACTOR constructed the roadway at 5d' Street and Avenue, in the City, County, and State of New York. 90' 50. At all relevant times, defendant CONTRACTOR controlled the roadway at 5d' Street and Avenue, in the City, County, and State of New York. NER-ARNOl.D•WINSTON 7 7 of 19 FILED: NEW YORK COUNTY CLERK 02/28/2018 12/29/2022 05:38 04:06 PM INDEX NO. 150253/2017 NYSCEF DOC. NO. 23 93 RECEIVED NYSCEF: 02/28/2018 12/29/2022 90' 5 1. At all relevant times, defendant CONTRACTOR maintained the roadway at 5th Street and Avenue, in the City, County, and State of New York. 9d' 52. At all relevant times, defendant CONTRACTOR repaired the roadway at 5d' Street and Avenue, in the City, County, and State of New York. 9th 53. At all relevant times, defendant CONTRACTOR managed the roadway at 5d' Street and Avenue, in the City, County, and State of New York. 9th 54. At all relevant times, defendant CONTRACTOR operated the roadway at 5d' Street and Avenue, in the City, County, and State of New York. 55. At all relevant times, defendant CONTRACTOR inserted manhole cover(s) [and 90' 5d' immediately surrounding asphalt] imbedded in the roadway at Street and Avenue, in the City, County, and State of New York. 56. At all.relevant times, defendant CONTRACTOR maintained manhole cover(s) 9d' 5d' [and immediately surrounding asphalt] imbedded in the roadway at Street and Avenue, in the City, County, and State of New York. 57. At all relevant times, subsequent to the February 22, 2016 incident, defendant CONTRACTOR by its agents, servants and/or employees made subsequent repairs to the 9d' 5d' roadway at Street and Avenue, in the City, County and State of New York. 58. Prior to the February 22, 2016 incident, defendant CONTRACTOR received 902 5d' prior written notice complaints regarding the roadway at Street and Avenue, in the City, County, and State of New York. LNER•ARNOLD•WINSTON 8 8 of 19 FILED: NEW YORK COUNTY CLERK 02/28/2018 12/29/2022 05:38 04:06 PM INDEX NO. 150253/2017 NYSCEF DOC. NO. 23 93 RECEIVED NYSCEF: 02/28/2018 12/29/2022 AS AND FOR A FIRST CAUSE OF ACTION AGAINST DEFENDANT CITY AND DOT 59. Plaintiffs repeat, reiterate and reallege each and every allegation contained in "1" paragraphs numbered through "58", inclusive, of the Verified Complaint, with the same force and effect as though more fully set forth herein at length. 60. At all times hereinafter mentioned, defendants CITY and DOT had a duty to 9d¹ 5d' maintain the roadway, and appurtenances thereon, at Street and Avenue, in the City, County, and State of New York, in a reasonably safe condition. 61. At alltimes hereinafter mentioned, defendants CITY and DOT failed to properly 90' 501 maintain the roadway, and appurtenances thereon, at Street and Avenue, in the City, County, and State of New York, in a reasonably safe condition. 62. The unreasonably unsafe condition of the roadway, and appurtenances thereon, 90' 5d' at Street and Avenue, in the City, County, and State of New York, was due wholly to the negligence, gross negligence, recklessness and/or carelessness of defendants CITY and DOT. 63. Defendants CITY and DOT were careless, negligent, grossly negligent and/or reckless in that they, inter alia (a) failed to maintain the roadway, and appurtenances thereon, at 90' 5d' Street and Avenue, in the City, County, and State of New York, in a reasonably safe condition; (b) failed to notify and/or warn pedestrians of the dangerous and/or defective conditions existing thereat; (c) failed to provide an alternate route for pedestrians in the subject area; (d) created and/or permitted a dangerous, defective and/or unsafe condition to exist in the subject area; (e) failed to correct the dangerous, defective and/or unsafe condition they created and existed in the subject area; (f) failed to remove the dangerous, defective and/or unsafe condition that existed in the subject area although the defendants, and/or their agents, servants and/or employees knew or should have known of the existence of the dangerous, defective and/or unsafe condition of the NER•ARNOLD-WINSTON 9 9 of 19 FILED: NEW YORK COUNTY CLERK 02/28/2018 12/29/2022 05:38 04:06 PM INDEX NO. 150253/2017 NYSCEF DOC. NO. 23 93 RECEIVED NYSCEF: 02/28/2018 12/29/2022 subject area; (g) failed to inspect and/or properly inspect the subject area; (h) failed to ensure and/or properly ensure the safety of the subject area; (i)made faulty temporary repairs prior to Februaiy 22, 2016; (j) violated those statutes, ordinances, rules and regulations relating construction and maintenance of the subject area; (k) failed to exercise the degree of care required under the circumstances; and (1) and in that defendants were otherwise careless, negligent, grossly negligent and reckless. 64. Solely by reason of the carelessness, negligence, gross negligence and recklessness of defendant CITY and DOT, through their agents, servants and/or employees, and as a direct and proximate cause thereof, plaintiff JEFFREY GOLDSTEIN was caused to suffer serious personal injuries as well as mental and emotional pain, anguish and distress. All of the above listed injuries are believed to be permanent in nature. 65. Defendants, CITY and DOT through their agents, servants and/or employees had both actual and constructive knowledge and notice of the dangerous, defective and/or hazardous conditions of the subject area in that such conditions were caused by defendants CITY and DOT through their agents, servants and/or employees, and/or the dangerous, defective and/or unsafe condition had existed for a sufficient length of time prior to the happening of the subject incident, that the defendants CITY and DOT through their agents, servants and/or employees should have corrected the defective condition. 66. The incident herein and the injuries resulting there from were due solely and wholly to the carelessness, negligence, gross negligence and recklessness of the defendants CITY and DOT's conduct, through their agents, servants and/or employees and without any fault or want of care on behalf of the plaintiff JEFFREY GOLDSTEIN. 9d' 5"' 67. The roadway, and appurtenances thereon, at Street and Avenue, in the City, County, and State of New York, . where plaintiff JEFFREY GOLDSTEIN was injured, were .NER-ARNOLD JEER.ARNOLD•WINSTON 10 10 of 19 FILED: NEWI ' YORK COUNTY CLERK 02/28/2018 12/29/2022 05:38 04:06 PM INDEX NO. 150253/2017 NYSCEF DOC. NO. 23 93 RECEIVED NYSCEF: 02/28/2018 12/29/2022 improperly, inadequately, carelessly, negligently, gross negligently and recklessly constructed, configured, designed, managed, supervised, inspected, controlled, repaired and maintained such that itconstituted a severe hazard, a trap for the unwary, a public and private nuisance and were in violation of all applicable codes, rules and ordinances. 68. By reason of the foregoing, plaintiff JEFFREY GOLDSTEIN sustained serious personal injuries and is entitled to damages of an amount to be determined by a New York County Jury at the time of trial. 69. By reason of the foregoing, plaintiff JEFFREY GOLDSTEIN was caused to suffer damages that exceed the jurisdictional limits of all lower Courts that would otherwise have jurisdiction herein. 70. The limitations on liability set forth in CPLR 1601 do not apply by reason of one or more of the exemptions set forth in CPLR 1602. AS AND FOR A SECOND CAUSE OF ACTION AGAINST DEFENDANT CON ED 71. Plaintiffs repeat, reiterate and reallege each and every allegation contained in "1" paragraphs numbered through "70", inclusive, of the Verified Complaint, with the same force and effect as though more fully set forth herein at length. 72. At all times hereinafter mentioned, defendant CON ED had a duty to maintain 9d' 5d' the roadway, and appurtenances thereon, surrounding its manhole covers at Street and Avenue, in the City, County, and State of New York, in a reasonably safe condition. 73. At all times hereinafter mentioned, defendant CON ED failed to properly 90' maintain the roadway, and appurtenances thereon surrounding its manhole covers at Street 5d' and Avenue, in the City, County, and State of New York, in a reasonably safe condition. NER-ARNOLD•WINSTON 11 11 of 19 FILED: NEW YORK COUNTY CLERK 02/28/2018 12/29/2022 05:38 04:06 PM INDEX NO. 150253/2017 NYSCEF DOC. NO. 23 93 RECEIVED NYSCEF: 02/28/2018 12/29/2022 74. The unreasonably unsafe condition of the roadway, and appurtenances thereon 902 5d' surrounding its manhole covers at Street and Avenue, in the City, County, and State of New York, were due wholly to the negligence, gross negligence, recklessness and/or carelessness of defendant CON ED. 75. Defendant CON ED was careless, negligent, grossly negligent and/or reckless in that it, inter alia (a) failed to maintain the roadway, and appurtenances thereon surrounding its 90' 5d' manhole covers at Street and Avenue, in the City, County, and State of New York, in a reasonably safe condition; (b) failed to notify and/or warn pedestrians of the dangerous and/or defective conditions existing thereat; (c) failed to provide an alternate route for pedestrians in the subject area; (d) created and/or permitted a dangerous, defective and/or unsafe condition to exist in the subject area; (e) failed to correct the dangerous, defective and/or unsafe condition they created and existed in the subject area; (f)failed to remove the dangerous, defective and/or unsafe condition that existed in the subject area although the defendant, and/or itsagents, servants and/or employees knew or should have known of the existence of the dangerous, defective and/or unsafe condition of the subject area; (g) failed to inspect and/or properl