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Alan A.B, McDowell — Direct 212-743-7009 — amcdowell@ssrga.com
January 25, 2017
VIA E-FILING
Hon. Kathryn E. Freed
Supreme Court, New York County
80 Centre Street, Room 280
New York, NY 10013
Re: 270 West End Tenants Corp. v. 266 Weave, LLC and Todd Wider,
150228/2017 (Sup. Ct. N.Y. Co. 2017).
Dear Justice Freed:
We represent plaintiff 270 West End Tenants Corp. in the above-referenced
action. We regret the need to seek Your Honor’s intervention in this matter, but the parties have
been unable to reach agreement on the conditions under which plaintiff and its contractor,
Intersystem S&S Corp. (“Intersystem”), should be allowed to install the sidewalk bridge
extension (the “Bridge Extension”) in front of defendants’ townhouse located at 266 West End
Avenue, New York, New York (the “Townhouse”). The Bridge Extension was the subject of
oral argument on plaintiff's application for a TRO and motion for a preliminary injunction on
January 10 and 19, 2017. Counsel for the parties called chambers this morning, and Your
Honor’s Law Clerk, Dylan Cerbini, agreed that counsel should each e-file this afternoon a
proposed order with a short explanatory letter.
At the conclusion of oral argument on January 19, 2017, Your Honor ruled that
the Bridge Extension was necessary as a matter of public safety and should be installed as soon
as possible. Your Honor ruled that appropriate insurance and indemnification should be
provided to defendants, but further ruled that the question of whether the parties’ previously
negotiated “access agreement” applies to the Bridge Extension, which, as designed, will not
touch defendants’ property, would be determined at a later date. Thus, the only open issue is the
provision of appropriate insurance and indemnification to defendants.
Attached hereto is plaintiffs proposed order providing for installation of the
Bridge Extension in accordance with the plans discussed at oral argument (the parties are in
agreement on this point) and appropriate indemnification and insurance. Briefly, plaintiff's
270 Madison Avenue, New York, NY 10016
Main: 212-743-7000 - Fax: 212-743-7001 - www.ssrga.comHon. Kathryn E. Freed
January 25, 2017
Page 2
proposed order includes broad indemnification language providing that both defendants will be
separately indemnified by both plaintiff and its contractor, Intersystem.!
Moreover, both defendants have been named as “additional insureds” on
Intersystem’s insurance policies as evidenced by certificates of liability insurance, a blanket
additional insured endorsement page, an executed (and redacted) services contract between
plaintiff and Intersystem, and a waiver of subrogation endorsement, copies of which are annexed
to plaintiff's proposed order. The aggregate coverage limits under the general commercial
liability and umbrella liability policies are $2,000,000 and $5,000,000, respectively. Such
coverage is more than sufficient for the extremely limited scope of this project — i.¢., installation
of a short, single-story sidewalk bridge extension in front of, but not on or against, defendants’
property.
In a draft proposed order submitted to us by defendants’ counsel, defendants
sought concessions well beyond those which were contemplated by Your Honor at oral argument
—i.e., adequate insurance and indemnification. Among other things, defendants’ proposal sought
to make plaintiff responsible for maintenance of their own property, including the ongoing
obligation of “sweeping” and “removal of rubbish” on defendants’ property. Incredibly,
defendants even demanded that plaintiff pay after six months a daily license fee of $500 for the
Bridge Extension, which on its face is manifestly unreasonable. More important, this demand
raises precisely the same issue — the purported application of the parties’ access agreement and
potential license fees under that agreement — that Your Honor expressly ruled would not be
determined at this time.
Defendants have also demanded that they be included as additional insured parties
on plaintiff's insurance policy. Such coverage is unnecessary, duplicative and excessive,
particularly in light of the extensive indemnification and insurance coverage described above.
Nevertheless, as a courtesy, plaintiff asked its carrier if it would agree to this demand. Plaintiff's
carrier issued a certificate of liability insurance naming both defendants as additional insured
parties, but has not been willing to provide the endorsement page demanded by defendants.
Defendants have indicated that they are unwilling to rely on the certificate alone.
In sum, plaintiff has provided more than enough protection for defendants in
connection with this modest “construction” project. The two broad indemnifications and the
insurance coverage provide under Intersystem’s policies are manifestly appropriate and sufficient
for the installation, maintenance and removal of the Bridge Extension. We respectfully request
that Your Honor adopt plaintiffs proposed order, and reject defendants’ efforts to impose on
plaintiff conditions that are manifestly unreasonable and that clearly were not contemplated by
this Court.
1 : sees .
Intersystem has executed a broad form of indemnification, crossing out only language relating to
sickness and mold, which has no relevance to the installation of the Bridge Extension next to defendag
property and over the sidewalk.Hon. Kathryn E. Freed
January 25, 2017
Page 3
Respectfully,
LEELA
Alan A.B. McDowell
ce: counsel for defendants (via e-filing)
AAM/821623
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Alan A.B, McDowell — Direct 212-743-7009 — amcdowell@ssrga.com January 25, 2017 VIA E-FILING Hon. Kathryn E. Freed Supreme Court, New York County 80 Centre Street, Room 280 New York, NY 10013 Re: 270 West End Tenants Corp. v. 266 Weave, LLC and Todd Wider, 150228/2017 (Sup. Ct. N.Y. Co. 2017). Dear Justice Freed: We represent plaintiff 270 West End Tenants Corp. in the above-referenced action. We regret the need to seek Your Honor’s intervention in this matter, but the parties have been unable to reach agreement on the conditions under which plaintiff and its contractor, Intersystem S&S Corp. (“Intersystem”), should be allowed to install the sidewalk bridge extension (the “Bridge Extension”) in front of defendants’ townhouse located at 266 West End Avenue, New York, New York (the “Townhouse”). The Bridge Extension was the subject of oral argument on plaintiff's application for a TRO and motion for a preliminary injunction on January 10 and 19, 2017. Counsel for the parties called chambers this morning, and Your Honor’s Law Clerk, Dylan Cerbini, agreed that counsel should each e-file this afternoon a proposed order with a short explanatory letter. At the conclusion of oral argument on January 19, 2017, Your Honor ruled that the Bridge Extension was necessary as a matter of public safety and should be installed as soon as possible. Your Honor ruled that appropriate insurance and indemnification should be provided to defendants, but further ruled that the question of whether the parties’ previously negotiated “access agreement” applies to the Bridge Extension, which, as designed, will not touch defendants’ property, would be determined at a later date. Thus, the only open issue is the provision of appropriate insurance and indemnification to defendants. Attached hereto is plaintiffs proposed order providing for installation of the Bridge Extension in accordance with the plans discussed at oral argument (the parties are in agreement on this point) and appropriate indemnification and insurance. Briefly, plaintiff's 270 Madison Avenue, New York, NY 10016 Main: 212-743-7000 - Fax: 212-743-7001 - www.ssrga.comHon. Kathryn E. Freed January 25, 2017 Page 2 proposed order includes broad indemnification language providing that both defendants will be separately indemnified by both plaintiff and its contractor, Intersystem.! Moreover, both defendants have been named as “additional insureds” on Intersystem’s insurance policies as evidenced by certificates of liability insurance, a blanket additional insured endorsement page, an executed (and redacted) services contract between plaintiff and Intersystem, and a waiver of subrogation endorsement, copies of which are annexed to plaintiff's proposed order. The aggregate coverage limits under the general commercial liability and umbrella liability policies are $2,000,000 and $5,000,000, respectively. Such coverage is more than sufficient for the extremely limited scope of this project — i.¢., installation of a short, single-story sidewalk bridge extension in front of, but not on or against, defendants’ property. In a draft proposed order submitted to us by defendants’ counsel, defendants sought concessions well beyond those which were contemplated by Your Honor at oral argument —i.e., adequate insurance and indemnification. Among other things, defendants’ proposal sought to make plaintiff responsible for maintenance of their own property, including the ongoing obligation of “sweeping” and “removal of rubbish” on defendants’ property. Incredibly, defendants even demanded that plaintiff pay after six months a daily license fee of $500 for the Bridge Extension, which on its face is manifestly unreasonable. More important, this demand raises precisely the same issue — the purported application of the parties’ access agreement and potential license fees under that agreement — that Your Honor expressly ruled would not be determined at this time. Defendants have also demanded that they be included as additional insured parties on plaintiff's insurance policy. Such coverage is unnecessary, duplicative and excessive, particularly in light of the extensive indemnification and insurance coverage described above. Nevertheless, as a courtesy, plaintiff asked its carrier if it would agree to this demand. Plaintiff's carrier issued a certificate of liability insurance naming both defendants as additional insured parties, but has not been willing to provide the endorsement page demanded by defendants. Defendants have indicated that they are unwilling to rely on the certificate alone. In sum, plaintiff has provided more than enough protection for defendants in connection with this modest “construction” project. The two broad indemnifications and the insurance coverage provide under Intersystem’s policies are manifestly appropriate and sufficient for the installation, maintenance and removal of the Bridge Extension. We respectfully request that Your Honor adopt plaintiffs proposed order, and reject defendants’ efforts to impose on plaintiff conditions that are manifestly unreasonable and that clearly were not contemplated by this Court. 1 : sees . Intersystem has executed a broad form of indemnification, crossing out only language relating to sickness and mold, which has no relevance to the installation of the Bridge Extension next to defendag property and over the sidewalk.Hon. Kathryn E. Freed January 25, 2017 Page 3 Respectfully, LEELA Alan A.B. McDowell ce: counsel for defendants (via e-filing) AAM/821623