Preview
FILED: NEW YORK COUNTY CLERK 08/17/2018 11:49 AM INDEX NO. 151104/2017
NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 08/17/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
---------------------------------------------------------------x
:
COLT 93 NORTH 9TH STREET LLC, : Index No.: 151104/2017
:
Plaintiff, :
:
- against - :
:
93-97 WYTHE AVENUE LP, :
THE HOXTON (WILLIAMSBURG) LLC :
f/k/a 93-97 WYTHE AVENUE LLC and :
MAGNETIC BUILDERS GROUP LLC, :
:
Defendants. :
:
----------------------------------------- ---x
:
93-97 WYTHE AVENUE LP, : Third-Party
THE HOXTON (WILLIAMSBURG) LLC : Index No. 595386/2017
f/k/a 93-97 WYTHE A VENUE LLC and :
MAGNETIC BUILDERS GROUP LLC, :
:
Third-Party Plaintiffs, :
:
- against - :
:
EXPEDITION CONTRACTING CORP. :
and ANCHOR IT INC., :
:
Third-Party Defendants. :
:
______ ------------------------------ -----x
PLAINTIFF'S SUPPLEMENTAL RESPONSE TO
DEFENDANTS'
NOTICE FOR DISCOVERY AND INSPECTIO_N
Plaintiff Colt 93 North 9th Street LLC, by itsattorneys, Matalon • Shweky • Elman
PLLC, hereby supplements itresponse to the Notice for Discovery and Inspection of Defendants
93-97 Wythe Avenue, LP, The Hoxton (Williamsburg) LLC f/k/a 93-97 Wythe Avenue LLC,
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FILED: NEW YORK COUNTY CLERK 08/17/2018 11:49 AM INDEX NO. 151104/2017
NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 08/17/2018
and Magnetic Builders Group LLC as follows: additional documents responsive to the Notice
for Discovery and Inspection are produced herewith as COLT001675 to COLT001677.
MATALON • SHWEKY • ELMAN PLLC
By: s/Barbara R. Shwek y
Barbara R. Shweky
450 Seventh Avenue, 33rd Floor
New York, NY 10123
(212) 244-9000
Attorneys for Plaintiff
Dated: August 17, 2018
New York, New York
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FILED: NEW YORK COUNTY CLERK 08/17/2018 11:49 AM INDEX NO. 151104/2017
NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 08/17/2018
MATALON • SHWEKY• ELMAN eu,a
ArrORNEYS AT LAW
HOWARD L ELMAN DAVID N. LEVY
JOSEPH LEE MATALON YELENA RAPOPORT
BARBARA R. SHWEKY LINDSAY H. SKLAR
YOSEF ROTHSTEIN JOsHUA BUHLER
JEREMY C. BATES July 28, 201 6 RAOUL DUGGAL
of comisd
BY FEDEX AND EMAIL
diane.herrera@xcatlin.com
Diane M. Herrera
Large Loss Specialist
XL Catlin
3340 Peachtree Road, NE, Suite 2950
Atlanta, Georgia 30326
90'
Re: 93 North Street, Brooklyn, New York
XL Catlin Insured: 93-97 Wythe Avenue, et al.
XL Catlin file: ATS-GL-l 60059
Dear Ms. Herrera:
9d'
I represent Colt 93 North Street. In response to your letter dated May 19, 2016, I
submit this claim for the property damage caused by 93-97 Wythe Avenue LLC, Sydell Group to
9d'
my client's property at 93 North Street, Brooklyn, New York (the "Property"), and other
direct and consequential damages sustained by my client as a result of the property damage.
The following structural damage occurred at the Property: (a) continuous cracks,
½"
approximately wide with vertical displacement, in the concrete slab on grade along the west
exterior wall (common property line);(b) downward and outward (½") movement of the
foundation wall along the west property line;(c) visible separation between the interior face of
the foundation wall and the soil below the slab; and (d) a large void under the slab on grade at
the test pitnear the front entry. We have consulted with an independent structural engineer, who
confirmed that all of these conditions resulted directly from Sydell's faulty underpinning work at
the Property.
Notably, the Department of Buildings ("DOB") concluded that the underpinning was
defective and inadequate, having issued three notices of violation and a partial stop work order
2016.'
against Sydell in January Sydell's negligent actions also constituted a breach of the
1
Violation 35156043Z was issued for "failure topreserve and protect adjoining structure
operations."
affected by excavation DOB noted that Sydell has "failed to carry out underpinning
building."
work in a manner that would preserve and protect the adjoining DOB also found that
"excavation has resulted insoil loss causing [a] void under concrete slab, settlement and crack in
slab."
[the] floor Thus, DO.B issued a partial stop work order forexcavation-related activities
450 Seventh Avenue + 33rd Floor • New York, New York 10123 • PH 2 12 244-9000 * EdLX 212 244-4615
COLT001675
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FILED: NEW YORK COUNTY CLERK 08/17/2018 11:49 AM INDEX NO. 151104/2017
NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 08/17/2018
MATALON • SHWEKY• ELMAN cu.c
Diane M. IIerrera
July 28, 2016
Page 2
Zoning Lot Development and Easement Agreement dated August 28, 2013 ("ZLDEA"), which
requires Sydell to take such precautions as may be reasonably necessary to prevent damage to
the Property in connection with, among other things, the attachment of foundations and
subsurface building supports and shoring and underpinning to,and bracing of the Property, as
necessary.
As set forthin the enclosed Addendum, Sydell's wrongful acts and omissions have
caused, and will continue to cause more than $2,800,000 in physical and economic damage to
my client. First,extensive structural repairs are required to the foundation and concrete slab.
Second, my client's own construction and leasing activities have been delayed by two years as
they cannot begin until the construction at Sydell's property progresses to ground level; the
repair work necessitated by the damage caused by Sydell cannot commence until that juncture.
Third, my client has incurred professional fees (of itsstructural engineer) to evaluate the damage
attorneys'
to the Property. Finally, my client is entitledto reimbursement of the feesincurred in
pursuing itsrights and remedies in connection with the damage to the Property (under Section
9.1 of the ZLDEA).
My client is prepared to commence litigation to address these issues. If you are interested
in reaching a settlement, please contact me before August 5, 2016.
er truly yours,
Jo·
I ce Matalon
cc: Mr. Phil Hospod
Vice President, Development
Sydell Group
26*
30 West Street
New York, New York 100l0
Mr. Joshua Babbitt
Sydell Grou
30 West 26 Street
New York, New York 10010
(which my client believes Sydell has violated). DOB also issued violation 35156044K against
Sydell for "failure to take adequate measures to prevent verticaland lateral displacement of
underpinned."
adjoining structures being The violation was based on DOB's finding that Sydell
had "failed to take adequate measures to prevent the vertical and lateraldisplacement in the
operation."
adjoining building . . . during underpinning Significantly, DOB concluded that
building."
Sydell's failures "resulted in structural damage to the adjoining
COLTO01676
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FILED: NEW YORK COUNTY CLERK 08/17/2018 11:49 AM INDEX NO. 151104/2017
NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 08/17/2018
9"
ADDENDUM TO CLAIM OF COLT 93 NORTH STREET LLC
Repairs of foundation and concrete slab $175,000.00
level)'
Lost rental income (ground level and roof $2,613,625.00
Structural engineer fees $25,000,00
Attorneys'
fees $33,000.00
Total: $2,846,625.00
Based on $125.00 per square foot rent infirstyear and $128.75 in second year, for 7,500 square feetof
ground level space, and $35.00 per square foot rent in year
first and $36.05 per square footin second
year, for 10,000 square feetof rooftop space.
COLTO01677
5 of 5
Preview
FILED: NEW YORK COUNTY CLERK 08/17/2018 11:49 AM INDEX NO. 151104/2017 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 08/17/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ---------------------------------------------------------------x : COLT 93 NORTH 9TH STREET LLC, : Index No.: 151104/2017 : Plaintiff, : : - against - : : 93-97 WYTHE AVENUE LP, : THE HOXTON (WILLIAMSBURG) LLC : f/k/a 93-97 WYTHE AVENUE LLC and : MAGNETIC BUILDERS GROUP LLC, : : Defendants. : : ----------------------------------------- ---x : 93-97 WYTHE AVENUE LP, : Third-Party THE HOXTON (WILLIAMSBURG) LLC : Index No. 595386/2017 f/k/a 93-97 WYTHE A VENUE LLC and : MAGNETIC BUILDERS GROUP LLC, : : Third-Party Plaintiffs, : : - against - : : EXPEDITION CONTRACTING CORP. : and ANCHOR IT INC., : : Third-Party Defendants. : : ______ ------------------------------ -----x PLAINTIFF'S SUPPLEMENTAL RESPONSE TO DEFENDANTS' NOTICE FOR DISCOVERY AND INSPECTIO_N Plaintiff Colt 93 North 9th Street LLC, by itsattorneys, Matalon • Shweky • Elman PLLC, hereby supplements itresponse to the Notice for Discovery and Inspection of Defendants 93-97 Wythe Avenue, LP, The Hoxton (Williamsburg) LLC f/k/a 93-97 Wythe Avenue LLC, 1 of 5 FILED: NEW YORK COUNTY CLERK 08/17/2018 11:49 AM INDEX NO. 151104/2017 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 08/17/2018 and Magnetic Builders Group LLC as follows: additional documents responsive to the Notice for Discovery and Inspection are produced herewith as COLT001675 to COLT001677. MATALON • SHWEKY • ELMAN PLLC By: s/Barbara R. Shwek y Barbara R. Shweky 450 Seventh Avenue, 33rd Floor New York, NY 10123 (212) 244-9000 Attorneys for Plaintiff Dated: August 17, 2018 New York, New York 2 of 5 FILED: NEW YORK COUNTY CLERK 08/17/2018 11:49 AM INDEX NO. 151104/2017 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 08/17/2018 MATALON • SHWEKY• ELMAN eu,a ArrORNEYS AT LAW HOWARD L ELMAN DAVID N. LEVY JOSEPH LEE MATALON YELENA RAPOPORT BARBARA R. SHWEKY LINDSAY H. SKLAR YOSEF ROTHSTEIN JOsHUA BUHLER JEREMY C. BATES July 28, 201 6 RAOUL DUGGAL of comisd BY FEDEX AND EMAIL diane.herrera@xcatlin.com Diane M. Herrera Large Loss Specialist XL Catlin 3340 Peachtree Road, NE, Suite 2950 Atlanta, Georgia 30326 90' Re: 93 North Street, Brooklyn, New York XL Catlin Insured: 93-97 Wythe Avenue, et al. XL Catlin file: ATS-GL-l 60059 Dear Ms. Herrera: 9d' I represent Colt 93 North Street. In response to your letter dated May 19, 2016, I submit this claim for the property damage caused by 93-97 Wythe Avenue LLC, Sydell Group to 9d' my client's property at 93 North Street, Brooklyn, New York (the "Property"), and other direct and consequential damages sustained by my client as a result of the property damage. The following structural damage occurred at the Property: (a) continuous cracks, ½" approximately wide with vertical displacement, in the concrete slab on grade along the west exterior wall (common property line);(b) downward and outward (½") movement of the foundation wall along the west property line;(c) visible separation between the interior face of the foundation wall and the soil below the slab; and (d) a large void under the slab on grade at the test pitnear the front entry. We have consulted with an independent structural engineer, who confirmed that all of these conditions resulted directly from Sydell's faulty underpinning work at the Property. Notably, the Department of Buildings ("DOB") concluded that the underpinning was defective and inadequate, having issued three notices of violation and a partial stop work order 2016.' against Sydell in January Sydell's negligent actions also constituted a breach of the 1 Violation 35156043Z was issued for "failure topreserve and protect adjoining structure operations." affected by excavation DOB noted that Sydell has "failed to carry out underpinning building." work in a manner that would preserve and protect the adjoining DOB also found that "excavation has resulted insoil loss causing [a] void under concrete slab, settlement and crack in slab." [the] floor Thus, DO.B issued a partial stop work order forexcavation-related activities 450 Seventh Avenue + 33rd Floor • New York, New York 10123 • PH 2 12 244-9000 * EdLX 212 244-4615 COLT001675 3 of 5 FILED: NEW YORK COUNTY CLERK 08/17/2018 11:49 AM INDEX NO. 151104/2017 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 08/17/2018 MATALON • SHWEKY• ELMAN cu.c Diane M. IIerrera July 28, 2016 Page 2 Zoning Lot Development and Easement Agreement dated August 28, 2013 ("ZLDEA"), which requires Sydell to take such precautions as may be reasonably necessary to prevent damage to the Property in connection with, among other things, the attachment of foundations and subsurface building supports and shoring and underpinning to,and bracing of the Property, as necessary. As set forthin the enclosed Addendum, Sydell's wrongful acts and omissions have caused, and will continue to cause more than $2,800,000 in physical and economic damage to my client. First,extensive structural repairs are required to the foundation and concrete slab. Second, my client's own construction and leasing activities have been delayed by two years as they cannot begin until the construction at Sydell's property progresses to ground level; the repair work necessitated by the damage caused by Sydell cannot commence until that juncture. Third, my client has incurred professional fees (of itsstructural engineer) to evaluate the damage attorneys' to the Property. Finally, my client is entitledto reimbursement of the feesincurred in pursuing itsrights and remedies in connection with the damage to the Property (under Section 9.1 of the ZLDEA). My client is prepared to commence litigation to address these issues. If you are interested in reaching a settlement, please contact me before August 5, 2016. er truly yours, Jo· I ce Matalon cc: Mr. Phil Hospod Vice President, Development Sydell Group 26* 30 West Street New York, New York 100l0 Mr. Joshua Babbitt Sydell Grou 30 West 26 Street New York, New York 10010 (which my client believes Sydell has violated). DOB also issued violation 35156044K against Sydell for "failure to take adequate measures to prevent verticaland lateral displacement of underpinned." adjoining structures being The violation was based on DOB's finding that Sydell had "failed to take adequate measures to prevent the vertical and lateraldisplacement in the operation." adjoining building . . . during underpinning Significantly, DOB concluded that building." Sydell's failures "resulted in structural damage to the adjoining COLTO01676 4 of 5 FILED: NEW YORK COUNTY CLERK 08/17/2018 11:49 AM INDEX NO. 151104/2017 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 08/17/2018 9" ADDENDUM TO CLAIM OF COLT 93 NORTH STREET LLC Repairs of foundation and concrete slab $175,000.00 level)' Lost rental income (ground level and roof $2,613,625.00 Structural engineer fees $25,000,00 Attorneys' fees $33,000.00 Total: $2,846,625.00 Based on $125.00 per square foot rent infirstyear and $128.75 in second year, for 7,500 square feetof ground level space, and $35.00 per square foot rent in year first and $36.05 per square footin second year, for 10,000 square feetof rooftop space. COLTO01677 5 of 5