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MATALON ¢ SHWERY ¢ ELMAN ric
ATTORNEYS AT Law
HOWARD I. ELMAN YOSEF ROTHSTEIN
JOSEPH LEE MATALON JEREMY C. BATES
BARBARA R. SHWEKY JUDD R. SPRAY
DAVID N. LEVY
June 6, 2017 YELENA RAPOPORT
VIA ECF
Justice Shirley Werner Kornreich
Supreme Court of the State of New York —- Commercial Division
County of New York
60 Centre Street, Room 555
New York, New York 10007
Re: — Colt 93 North 9th Street LLC v. 93-97 Wythe Avenue LP, The Hoxton
(Williamsburg) LLC f/k/a 93-97 Wythe Avenue LLC, and Magnetic Builders
Group LLC v. Expedition Contracting Corp. and Anchor It Inc.;
Index No. 151104/2017
Third-Party Index No. 595386/2017
Dear Justice Kornreich:
Counsel for plaintiff and defendants hereby submit this joint letter to appraise Your
Honor of the status of the above action, in advance of the preliminary conference scheduled for
June 8, 2017 at 12:00 p.m. Please be advised that Third-Party Defendants Expedition
Contracting Corp. and Anchor It. Inc. have yet to answer or appear with counsel, and have not
participated in the drafting of this letter.
Factual Background And Causes Of Action
Plaintiff Colt 93 North 9th Street LLC (“Colt”), owner of a one-story commercial
building located at 93 North 9th Street in Williamsburg, Brooklyn, brought this action to recover
an alleged $2,800,000 in property damage and economic losses from a neighboring property
owner, The Hoxton (Williamsburg) LLC f/k/a 93-97 Wythe Avenue LLC (“Hoxton”), and its
contractor, Magnetic Builders Group LLC (“Magnetic”). Plaintiff alleges that defendants did not
take proper precautions to protect Colt’s building from damage during their demolition and
construction of a nine-story building. Plaintiff alleges that as a result, Colt has had to spend
substantial amounts to repair the significant structural damages inflicted by defendants. In
addition, plaintiff further alleges that the structural damage delayed Colt’s development of its
own building and entry into leases for space in the building and on the roof, causing it to lose
more than $2,600,000 million in rental income. Colt seeks to recover these amounts, as well
as its attorney’s fees in connection with this action, pursuant to the terms of a development
contract with defendants.
450 Seventh Avenue ¢ 33rd Floor ¢ New York, New York 10123 ¢ PH 212 244-9000 * FAX 212 244-4615MATALON ¢ SHWEKY ¢ ELMAN pic
Justice Shirley Werner Kornreich
June 6, 2017
Page 2
Plaintiff asserts three causes of action. The first is for violation of Section 28-3309 of
the Administrative Code of the City of New York, which requires persons and entities who
undertake excavation and construction-related work to protect adjoining property from
damage during their construction or demolition work, and imposes absolute liability on
persons and entities who undertake excavation and construction-related work that causes
damage to adjoining property. The second cause of action, for negligence, alleges that
defendants breached their duty to perform the demolition and construction activities in a safe,
reasonable and non-negligent and non-reckless manner. The third claim is for attorneys’ fees
pursuant to the parties’ agreement.
Affirmative Defenses
Defendants/ Third-Party Plaintiffs 93-97 Wythe Avenue LP and The Hoxton
(Williamsburg) f/k/a 93-97 Wythe Avenue, LLC are the owners of a certain real estate
development project located at 93-97 Wythe Avenue, Brooklyn, New York, and Defendant/
Third-Party Plaintiff Magnetic Builders Group LLC is the construction manager working on
such project. Defendants/ Third-Party Plaintiffs maintain that proper protections were
arranged for the excavation and construction of the project to ensure that plaintiff's property
was adequately protected, and dispute the causation and extent of the alleged damages.
Defendants/ Third-Party Plaintiffs further maintain that all work was conducted with
reasonable care, in accordance with or exceeding all applicable municipal, city, state and
federal statutory, regulatory and common law requirements, regulations, codes, laws, rules
and standards whatsoever. As such, Defendants/ Third-Party Plaintiffs submit that they are
not liable for plaintiff’s alleged damages herein.
However, in the event that plaintiff's property did suffer such damages, which are not
conceded, Defendants/ Third-Party Plaintiffs aver that such damages were caused by
plaintiff's own negligence, carelessness or other culpable conduct, and/or the negligence,
carelessness or recklessness of Third-Party Defendants Expedition Contracting Corp. (the
contractor hired to perform excavation and foundation work on the project) and Anchor It
Inc. (the contractor hired to perform tie-back work on the project). Defendants/ Third-Party
Plaintiffs further contend that plaintiff’s alleged damages are overstated, are the result of a
failure to take reasonable steps to mitigate damages, and are the subject of improper
speculation regarding alleged lost rental income.MATALON ¢ SHWEKY ¢ ELMAN putc
Justice Shirley Werner Kornreich
June 6, 2017
Page 3
Third-Party Claims
In their Third-Party Complaint, Defendants/ Third-Party Plaintiffs asserted causes of
action sounding in contribution, indemnification (common law and contractual), and breach
of contract (failure to procure insurance) against Third-Party Defendants Expedition
Contracting Corp. and Anchor It Inc. Defendants/ Third-Party Plaintiffs further averred that
in the event that plaintiff was caused to sustain the damages alleged in the complaint through
any negligence other than that of the plaintiff, which is not conceded, than such damages
were sustained due to the primary and/or active negligence, carelessness and recklessness of
the Third-Party Defendants. Defendants/ Third-Party Plaintiffs further alleged that, pursuant
to written contracts with Third-Party Defendants, Defendants/ Third-Party Plaintiffs are
entitled to full insurance coverage, as well as complete and/or partial indemnification from
Third-Party Defendants for all or part of any sum that may be recovered by plaintiff against
Defendants/ Third-Party Plaintiffs, including any attorneys’ fees, costs and expenses incurred
in connection with this matter.
Third-Party Defendants have yet to submit an answer, enter an appearance of counsel,
or otherwise respond to the allegations contained in the Third-Party Complaint.
Status Of Discovery
Discovery requests have been served but discovery responses have yet to be exchanged.
Plaintiff and defendants served notices of deposition. Plaintiff served a request for production of
documents on defendants. Defendants served plaintiff with combined discovery demands.
Depositions have yet to be scheduled.
Ryan T. Kearney, Esq.
COZEN O’CONNOR
Attorneys for Defendants/ Third-Party Plaintiffs
45 Broadway, 16" Floor
New York, NY 10006
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MATALON ¢ SHWERY ¢ ELMAN ric ATTORNEYS AT Law HOWARD I. ELMAN YOSEF ROTHSTEIN JOSEPH LEE MATALON JEREMY C. BATES BARBARA R. SHWEKY JUDD R. SPRAY DAVID N. LEVY June 6, 2017 YELENA RAPOPORT VIA ECF Justice Shirley Werner Kornreich Supreme Court of the State of New York —- Commercial Division County of New York 60 Centre Street, Room 555 New York, New York 10007 Re: — Colt 93 North 9th Street LLC v. 93-97 Wythe Avenue LP, The Hoxton (Williamsburg) LLC f/k/a 93-97 Wythe Avenue LLC, and Magnetic Builders Group LLC v. Expedition Contracting Corp. and Anchor It Inc.; Index No. 151104/2017 Third-Party Index No. 595386/2017 Dear Justice Kornreich: Counsel for plaintiff and defendants hereby submit this joint letter to appraise Your Honor of the status of the above action, in advance of the preliminary conference scheduled for June 8, 2017 at 12:00 p.m. Please be advised that Third-Party Defendants Expedition Contracting Corp. and Anchor It. Inc. have yet to answer or appear with counsel, and have not participated in the drafting of this letter. Factual Background And Causes Of Action Plaintiff Colt 93 North 9th Street LLC (“Colt”), owner of a one-story commercial building located at 93 North 9th Street in Williamsburg, Brooklyn, brought this action to recover an alleged $2,800,000 in property damage and economic losses from a neighboring property owner, The Hoxton (Williamsburg) LLC f/k/a 93-97 Wythe Avenue LLC (“Hoxton”), and its contractor, Magnetic Builders Group LLC (“Magnetic”). Plaintiff alleges that defendants did not take proper precautions to protect Colt’s building from damage during their demolition and construction of a nine-story building. Plaintiff alleges that as a result, Colt has had to spend substantial amounts to repair the significant structural damages inflicted by defendants. In addition, plaintiff further alleges that the structural damage delayed Colt’s development of its own building and entry into leases for space in the building and on the roof, causing it to lose more than $2,600,000 million in rental income. Colt seeks to recover these amounts, as well as its attorney’s fees in connection with this action, pursuant to the terms of a development contract with defendants. 450 Seventh Avenue ¢ 33rd Floor ¢ New York, New York 10123 ¢ PH 212 244-9000 * FAX 212 244-4615MATALON ¢ SHWEKY ¢ ELMAN pic Justice Shirley Werner Kornreich June 6, 2017 Page 2 Plaintiff asserts three causes of action. The first is for violation of Section 28-3309 of the Administrative Code of the City of New York, which requires persons and entities who undertake excavation and construction-related work to protect adjoining property from damage during their construction or demolition work, and imposes absolute liability on persons and entities who undertake excavation and construction-related work that causes damage to adjoining property. The second cause of action, for negligence, alleges that defendants breached their duty to perform the demolition and construction activities in a safe, reasonable and non-negligent and non-reckless manner. The third claim is for attorneys’ fees pursuant to the parties’ agreement. Affirmative Defenses Defendants/ Third-Party Plaintiffs 93-97 Wythe Avenue LP and The Hoxton (Williamsburg) f/k/a 93-97 Wythe Avenue, LLC are the owners of a certain real estate development project located at 93-97 Wythe Avenue, Brooklyn, New York, and Defendant/ Third-Party Plaintiff Magnetic Builders Group LLC is the construction manager working on such project. Defendants/ Third-Party Plaintiffs maintain that proper protections were arranged for the excavation and construction of the project to ensure that plaintiff's property was adequately protected, and dispute the causation and extent of the alleged damages. Defendants/ Third-Party Plaintiffs further maintain that all work was conducted with reasonable care, in accordance with or exceeding all applicable municipal, city, state and federal statutory, regulatory and common law requirements, regulations, codes, laws, rules and standards whatsoever. As such, Defendants/ Third-Party Plaintiffs submit that they are not liable for plaintiff’s alleged damages herein. However, in the event that plaintiff's property did suffer such damages, which are not conceded, Defendants/ Third-Party Plaintiffs aver that such damages were caused by plaintiff's own negligence, carelessness or other culpable conduct, and/or the negligence, carelessness or recklessness of Third-Party Defendants Expedition Contracting Corp. (the contractor hired to perform excavation and foundation work on the project) and Anchor It Inc. (the contractor hired to perform tie-back work on the project). Defendants/ Third-Party Plaintiffs further contend that plaintiff’s alleged damages are overstated, are the result of a failure to take reasonable steps to mitigate damages, and are the subject of improper speculation regarding alleged lost rental income.MATALON ¢ SHWEKY ¢ ELMAN putc Justice Shirley Werner Kornreich June 6, 2017 Page 3 Third-Party Claims In their Third-Party Complaint, Defendants/ Third-Party Plaintiffs asserted causes of action sounding in contribution, indemnification (common law and contractual), and breach of contract (failure to procure insurance) against Third-Party Defendants Expedition Contracting Corp. and Anchor It Inc. Defendants/ Third-Party Plaintiffs further averred that in the event that plaintiff was caused to sustain the damages alleged in the complaint through any negligence other than that of the plaintiff, which is not conceded, than such damages were sustained due to the primary and/or active negligence, carelessness and recklessness of the Third-Party Defendants. Defendants/ Third-Party Plaintiffs further alleged that, pursuant to written contracts with Third-Party Defendants, Defendants/ Third-Party Plaintiffs are entitled to full insurance coverage, as well as complete and/or partial indemnification from Third-Party Defendants for all or part of any sum that may be recovered by plaintiff against Defendants/ Third-Party Plaintiffs, including any attorneys’ fees, costs and expenses incurred in connection with this matter. Third-Party Defendants have yet to submit an answer, enter an appearance of counsel, or otherwise respond to the allegations contained in the Third-Party Complaint. Status Of Discovery Discovery requests have been served but discovery responses have yet to be exchanged. Plaintiff and defendants served notices of deposition. Plaintiff served a request for production of documents on defendants. Defendants served plaintiff with combined discovery demands. Depositions have yet to be scheduled. Ryan T. Kearney, Esq. COZEN O’CONNOR Attorneys for Defendants/ Third-Party Plaintiffs 45 Broadway, 16" Floor New York, NY 10006