Preview
FILED: KINGS COUNTY CLERK 05/05/2023 04:57 PM INDEX NO. 508174/2023
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 05/05/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
----------------------------------------------------------------------x Index # 508174/2023
JAMES GEOFFREY,
Plaintiff,
NOTICE PURSUANT
-against- TO CPLR § 3402
SMITELL LLC, SMITELL B-1 LLC,
and EXTELL DEVELOPMENT COMPANY,
Defendants.
__________--------_____--_____________________________________________Ç
SMITELL LLC, SMITELL B-1 LLC,
and EXTELL DEVELOPMENT COMPANY,
Third-Party Plaintiffs,
-against-
SUNSHINE MF II LLC and SILVERLINING
INTERIORS INC.,
Third-Party Defendants.
----------------------------------------------------------------------x
C O U N S E L:
PLEASE TAKE NOTICE that pursuant to CPLR §1007, SUNSHINE MF II LLC and
SILVERLINING INTERIORS INC. have been impleaded into the above action as a Third-Party
Defendants, and the caption thereby has been changed to read as set forth above. The Note of Issue
has not been filed in this action.
Dated: May 4, 2023
Farmingdale, New York
By: Timothy J unn, III
REBORE, TH E & PISARELLO, P.C.
Attorneys for fendants/Third-Party Plaintiffs
SMITELL L , SMITELL B-1 LLC and
EXTELL ELOPMENT COMPANY
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500 Bi-COunty BOulevard, Suite 102
Farmingdale, NY 11735
(631) 249-6600
To: SUNSHINE MF II LLC
12th
767 Fifth Avenue, FlOOr
New York, NY 10153
Attn: Van Nguyen
SUNSHINE MF II LLC
c/O Lehrer Cumming
2nd
888 Seventh Avenue, FlOOr
New York, NY 10019
Attn: John Sweeney
SUNSHINE MF II LLC
c/o Robinson &COle LLP
20th
666 Third Avenue, FlOOr
New York, NY 10017
Attn: Gregory R. Faulkner
SILVERLINING INTERIORS INC.
3rd
2091 Broadway, FlOOr
New York, NY 10023
KRENTSEL GUZMAN HERBERT, LLP
Attorneys for Plaintiff
JAMES GEOFFREY
17 Battery Place, Suite 604
New YOrk, New YOrk 10004
(212) 227-2900
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
----------------------------------------------------------------------x Index # 508174/2023
JAMES GEOFFREY,
Plaintiff,
THIRD-PARTY
-against- SUMMONS
SMITELL LLC, SMITELL B-1 LLC,
and EXTELL DEVELOPMENT COMPANY,
Defendants.
__________--____________________------------___________----------_____Ç
SMITELL LLC, SMITELL B-1 LLC,
and EXTELL DEVELOPMENT COMPANY,
Third-Party Plaintiffs,
-against-
SUNSHINE MF II LLC and SILVERLINING
INTERIORS, INC.,
Third-Party Defendants.
--____________________________________________________________________Ç
TO THE ABOVE NAMED THIRD-PARTY DEFENDANT:
You are hereby summoned to answer the Complaint of the Third-Party Plaintiffs and the
Complaint of the Plaintiff, copies of which are hereby served upon you, and to serve copies of
your Answer upon the undersigned attorneys for the Third-Party Plaintiffs; and upon KRENTSEL
GUZMAN HERBERT LLP, Attorneys for Plaintiff, at their offices located at 17 Battery Place,
Suite 604, New York, New York 10004, within twenty (20) days after personal service of the
Third-Party Summons and Third-Party Complaint, exclusive of the date of service, or within thirty
(30) days if service is made upon you in some manner other than personal service within the State
of New York.
In case of your failure to answer the Third-Party Complaint of the Third-Party Plaintiff,
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judgment will be taken against you by default for the relief demanded in the Third-Party
Complaint.
Dated: May 4, 2023
Farmingdale, New York
By: Timothy J. , III
REBORE, THO & PISARELLO, P.C.
Attorneys for Def ants/Third-Party Plaintiffs
SMITELL LLC, ITELL B-1 LLC and
EXTELL DEVE PMENT COMPANY
500 Bi-County Boulevard, Suite 102
Farmingdale, NY 11735
(631) 249-6600
To: SUNSHINE MF II LLC
12th
767 Fifth Avenue, FlOOr
New York, NY 10153
Attn: Van Nguyen
SUNSHINE MF II LLC
c/o Lehrer Cumming
2nd
888 Seventh Avenue, FlOOr
New York, NY 10019
Attn: John Sweeney
SUNSHINE MF II LLC
c/o Robinson & Cole LLP
20t11
666 Third Avenue, Floor
New York, NY 10017
Attn: Gregory R. Faulkner
SILVERLINING INTERIORS INC.
3"l
2091 Broadway, Floor
New York, NY 10023
KRENTSEL GUZMAN HERBERT, LLP
Attorneys for Plaintiff
JAMES GEOFFREY
17 Battery Place, Suite 604
New York, New York 10004
(212) 227-2900
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
-------------------------------------------------------------------x Index # 508174/2023
JAMES GEOFFREY,
Plaintiff,
THIRD-PARTY
-against- COMPLAINT
SMITELL LLC, SMITELL B-1 LLC,
and EXTELL DEVELOPMENT COMPANY,
Defendants.
-----------______________________________--------------_______________Ç
SMITELL LLC, SMITELL B-1 LLC,
and EXTELL DEVELOPMENT COMPANY,
Third-Party Plaintiffs,
-against-
SUNSHINE MF II LLC and SILVERLINING
INTERIORS, INC.,
Third-Party Defendants.
___________________________________________________________------_____Ç
Defendants/Third-Party Plaintiffs, SMITELL LLC, SMITELL B-1 LLC, and EXTELL
DEVELOPMENT COMPANY, by their attorneys, REBORE, THORPE & PISARELLO, P.C., as
and for a Third-Party Complaint against the above named Third-Party Defendants, SUNSHINE
MF II LLC and SILVERLINING INTERIORS, INC., allege upon information and belief:
JURISDICTION AND PARTIES
1. At all times hereinafter mentioned, Defendant/Third-Party Plaintiff, SMITELL
LLC (hereinafter referred to as "SMITELL") is a limited liability company authorized to conduct
business in the State of New York with a principal place of business at 805 Third Avenue, New
York, New York.
2. At all times hereinafter SMITELL B-
mentioned, Defendant/Third-Party Plaintiff,
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1 LLC (hereinafter referred to as "B-1") is a limited liability company authorized to conduct
business in the State of New York with a principal place of business at 805 Third Avenue, New
York, New York.
3. At all times hereinafter mentioned, Defendant/Third-Party Plaintiff, EXTELL
DEVELOPMENT COMPANY (hereinafter referred to as "EXTELL") is a corporation authorized
to conduct business in the State of New York with a principal place of business at 805 Third
Avenue, New York, New York.
4. At all times hereinafter mentioned, the Third-Party Defendant, SUNSHINE MF II
LLC (hereinafter, referred to as "SUNSHINE") is a Delaware limited liability company authorized
to do business and doing business in the State of New York and maintaining a place of business at
12th
767 Fifth Avenue, Floor, New York, New York.
5. At all times hereinafter mentioned, the Third-Party Defendant, SILVERLINING
INTERIORS INC. (hereinafter referred to as "SILVERLINING") in a New York corporation
authorized to do business and doing business in the State of New York and maintaining a place of
3"l
business at 2091 Broadway, Floor, New York, New York.
6. At all times hereinafter mentioned, the Third-Party Defendant, SUNSHINE is a
foreign limited liability company that contracted to enter upon property and perform work in the
City, County and State of New York, and is therefore subject to the jurisdiction and laws of the
State of New York.
7. At all times hereinafter mentioned, the Third-Party Defendant, SUNSHINE, is a
foreign business entity that provided goods and/or services in the City, County and State of New
York, and is therefore subject to the jurisdiction and laws of the State of New York.
8. At all times hereinafter mentioned, the Third-Party Defendant, SILVERLINING,
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is a New York corporation that performed construction services in the City, County and State of
New York, and is therefore subject to the jurisdiction and laws of the State of New York.
9. At all times hereinafter mentioned, the Third-Party Defendant, SILVERLINING,
is a New York corporation that provided goods and/or services in the City, County and State of
New York, and is therefore subject to the jurisdiction and laws of the State of New York.
UNDERLYING ACTION
10. That the Plaintiff, JAMES GEOFFREY, commenced an action for damages against
Defendants, SMITELL, B-1 AND EXTELL by the filing of a Summons and Complaint on or about
March 16, 2023 a copy of which is annexed hereto and made a part hereof.
11. That the Defendants, SMITELL, B-1 and EXTELL, appeared in this action by the
filing and service of a Verified Answer on or about May 4, 2023, a copy of which is annexed
hereto and made a part hereof.
12. That this action arises in connection with an alleged construction site accident
involving Plaintiff, JAMES GEOFFREY, on January 30, 2023 at premises located at 217 West
57th
Street, unit 118, New York, New York (hereinafter, referred to as "the premises"), for which
Plaintiff claims to have sustained personal injuries and associated damages.
LICENSE AGREEMENT BETWEEN SMITELL AND SUNSHINE
Agreement"
13. That Third-Party Defendant, SUNSHINE, entered into a "License on
March 4, 2020 with defendant SMITELL LLC c/o EXTELL DEVELOPMENT COMPANY,
wherein SUNSHINE contracted as a Licensee for permission to enter upon the premises owned
by SMITELL and performance certain construction work at the premises.
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14. That the License Agreement contained, among other things, the following
indemnity provisions requiring SUNSHINE, as Licensee, to indemnify SMITELL, B-1 and
EXTELL, as Licensors:
8. Indemnity.
a. To the fullest extent permitted by law, Licensee shall defend, indemnify and hold
"C"
harmless, Licensor, the parties listed in Exhibit (which may be updated by
Licensor from time to time), the occupants of Licensor's Property and their
respective managers, members, officers, directors, stockholders, beneficiaries,
partners, representatives, agents, servants, contractors and employees
(collectively, with respect to Licensor, its "Indemnitees "), from and against all
claims, actions, costs, penalties, liens, violations, pnes, damages,
losses(including loss ofuse and economic loss) and expenses, including, but not
'
limited to, reasonable attorneys fees and disbursements (including reasonable
attorneys'
fees incurred in connection with the enforcement of this
indemnification and direct claims against the Indemnitees for breach of this
Agreement), arising out of or resulting from (but excluding any of the foregoing
to the extent resulting from the willful misconduct or negligence of the Licensor
or any of its Indemnitees : (i) the Work; (ii) any act or omission by Licensee,
Licensee Parties or any party for whom Licensee is responsible, and/or (iii)
Licensee 's failure to comply with its obligations set forth in Section 9. In the
event of any claim against any Indemnitee by any employee of Licensee or
Licensee Party, the indemnification obligation under this Section 8(a) shall not
be limited in any way by any limitation on the amount or type of damages,
compensation or benef its payable by or for Licensee or Licensee Parties under
' '
Workmans or Workers Compensation acts, disability benefit acts or other
employee benef it acts. This indemnif ication obligation shall not be construed to
negate, abridge or otherwise reduce any right or obligation of indemnity that
otherwise would exist in favor of any Indemnitee from any source.
. . .
c. This Section 8 shall survive termination or expiration of this Agreement.
15. That Exhibit C to the License Agreement was the list of parties to be indemnified
by SUNSHINE and included SMITELL and EXTELL.
16. That the License Agreement provides at Paragraph 25 that "(t)his agreement shall
be binding upon and inure to the benefit of and be enforceable by the respective successors and
hereto."
assigns of the parties
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17. That B-1 is the successor to SMITELL in ownership of the premises, with the
apartment having been transferred by a deed dated January 26, 2023.
18. That this License Agreement between SUNSHINE and SMITELL also contained,
among other things, the following provisions concerning insurance requirements which required
SUNSHINE, as Licensee, to procure commercial general liability and commercial
excess/umbrella insurance for the benefit of the Licensors, including SMITELL, EXTELL AND
B-1 as additional insureds on a primary and non-contributory basis:
7. Insurance.
a. Licensee shall for itself and shall cause GC and Contractors to, procure and
maintain, at their sole cost and expense, until final completion of the Work, and
for a period of three (3) years thereafter, such insurance as will protect the
Licensor, Licensor's construction manager, Licensor's lender(s) and the
Indemnitees (hereinafter defined) listed on Exhibit "C", from claims arising out
of or resulting from the Work under this Agreement, whether performed by the
Licensee, GC, Contractors or by anyone directly or indirectly employed by
Licensee, or by anyone for whose acts Licensee may be liable. Such insurance
"A-"
shall be provided by an insurance carrier rated or better by A.M. Best and
lawfully authorized to do business in the jurisdiction where the Work is being
performed.
b. The insurance required hereunder (except Worker's Compensation and
Employer's Liability) shall include contractual liability coverage and additional
insured coverage for the benefit of the Licensor, the Indemnitees and anyone
else the Licensor is required to name, and shall specifically include coverage for
completed operations. The insurance required to be carried by the Licensee and
any contractors shall be PRIMARY AND NON-CONTRIBUTORY to the fullest
extent permitted by law. With respect to each type of insurance specif led
hereunder, the Licensor's insurances shall be excess to Licensee's insurance.
The insurance required hereunder shall be without any exclusion or exception
to any New York Labor Law claims and residential or condominium work.
c. The Licensee warrants that the coverage provided under the commercial
"occurrence"
general liability policies shall be written on an basis with
coverage as broad as the Insurance Service Office Inc 's form and that no
policy provisions shall restrict, reduce, limit or otherwise impair contractual
Indemnitees'
liability coverage or the Licensor's or status as additional
insured.
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d. Not less than five (5) days prior to commencement of the Work and until final
completion of the Work and for a period of three (3) years thereafter, Licensee
shall provide Licensor with a certificate(s) of insurance evidencing the required
insurance coverage with the limits stated below. The Licensee shall provide
'
Licensor with thirty (30) days written notice of a change or cancellation in
coverage. In addition, all insurance policies shall state that the insurer will
provide Licensor thirty (30) days prior written notice of a change or
cancellation in coverage.
e. Unless otherwise stipulated in this Agreement, Licensee shall, and/or shall
cause the GC and Contractors to, maintain the greater of the coverage they
currently carry or the limits below specified for each of the following insurance
coverages:
Workers'
i . Compensation and disability benef it insurance including
Occupational Disease in the minimum amounts as required by the
jurisdiction where the Work is performed;
i i . Comprehensive Automobile Liability insurance with minimum limits
of $1,000,000 combined single limit each accident, including bodily
injury and property damage liability;
i i i . Commercial General Liability insurance using an industry standard
unmodif led coverage form including contractual liability with
minimum limits of $2,000,000 each occurrence, $4,000,000
aggregate with either per project or per location endorsement for
property damage and bodily injury; and
i v . Excess or Umbrella Liability insurance (following the
Preview
FILED: KINGS COUNTY CLERK 05/05/2023 04:57 PM INDEX NO. 508174/2023 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 05/05/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ----------------------------------------------------------------------x Index # 508174/2023 JAMES GEOFFREY, Plaintiff, NOTICE PURSUANT -against- TO CPLR § 3402 SMITELL LLC, SMITELL B-1 LLC, and EXTELL DEVELOPMENT COMPANY, Defendants. __________--------_____--_____________________________________________Ç SMITELL LLC, SMITELL B-1 LLC, and EXTELL DEVELOPMENT COMPANY, Third-Party Plaintiffs, -against- SUNSHINE MF II LLC and SILVERLINING INTERIORS INC., Third-Party Defendants. ----------------------------------------------------------------------x C O U N S E L: PLEASE TAKE NOTICE that pursuant to CPLR §1007, SUNSHINE MF II LLC and SILVERLINING INTERIORS INC. have been impleaded into the above action as a Third-Party Defendants, and the caption thereby has been changed to read as set forth above. The Note of Issue has not been filed in this action. Dated: May 4, 2023 Farmingdale, New York By: Timothy J unn, III REBORE, TH E & PISARELLO, P.C. Attorneys for fendants/Third-Party Plaintiffs SMITELL L , SMITELL B-1 LLC and EXTELL ELOPMENT COMPANY 1 of 24 FILED: KINGS COUNTY CLERK 05/05/2023 04:57 PM INDEX NO. 508174/2023 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 05/05/2023 500 Bi-COunty BOulevard, Suite 102 Farmingdale, NY 11735 (631) 249-6600 To: SUNSHINE MF II LLC 12th 767 Fifth Avenue, FlOOr New York, NY 10153 Attn: Van Nguyen SUNSHINE MF II LLC c/O Lehrer Cumming 2nd 888 Seventh Avenue, FlOOr New York, NY 10019 Attn: John Sweeney SUNSHINE MF II LLC c/o Robinson &COle LLP 20th 666 Third Avenue, FlOOr New York, NY 10017 Attn: Gregory R. Faulkner SILVERLINING INTERIORS INC. 3rd 2091 Broadway, FlOOr New York, NY 10023 KRENTSEL GUZMAN HERBERT, LLP Attorneys for Plaintiff JAMES GEOFFREY 17 Battery Place, Suite 604 New YOrk, New YOrk 10004 (212) 227-2900 2 of 24 FILED: KINGS COUNTY CLERK 05/05/2023 04:57 PM INDEX NO. 508174/2023 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 05/05/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ----------------------------------------------------------------------x Index # 508174/2023 JAMES GEOFFREY, Plaintiff, THIRD-PARTY -against- SUMMONS SMITELL LLC, SMITELL B-1 LLC, and EXTELL DEVELOPMENT COMPANY, Defendants. __________--____________________------------___________----------_____Ç SMITELL LLC, SMITELL B-1 LLC, and EXTELL DEVELOPMENT COMPANY, Third-Party Plaintiffs, -against- SUNSHINE MF II LLC and SILVERLINING INTERIORS, INC., Third-Party Defendants. --____________________________________________________________________Ç TO THE ABOVE NAMED THIRD-PARTY DEFENDANT: You are hereby summoned to answer the Complaint of the Third-Party Plaintiffs and the Complaint of the Plaintiff, copies of which are hereby served upon you, and to serve copies of your Answer upon the undersigned attorneys for the Third-Party Plaintiffs; and upon KRENTSEL GUZMAN HERBERT LLP, Attorneys for Plaintiff, at their offices located at 17 Battery Place, Suite 604, New York, New York 10004, within twenty (20) days after personal service of the Third-Party Summons and Third-Party Complaint, exclusive of the date of service, or within thirty (30) days if service is made upon you in some manner other than personal service within the State of New York. In case of your failure to answer the Third-Party Complaint of the Third-Party Plaintiff, 3 of 24 FILED: KINGS COUNTY CLERK 05/05/2023 04:57 PM INDEX NO. 508174/2023 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 05/05/2023 judgment will be taken against you by default for the relief demanded in the Third-Party Complaint. Dated: May 4, 2023 Farmingdale, New York By: Timothy J. , III REBORE, THO & PISARELLO, P.C. Attorneys for Def ants/Third-Party Plaintiffs SMITELL LLC, ITELL B-1 LLC and EXTELL DEVE PMENT COMPANY 500 Bi-County Boulevard, Suite 102 Farmingdale, NY 11735 (631) 249-6600 To: SUNSHINE MF II LLC 12th 767 Fifth Avenue, FlOOr New York, NY 10153 Attn: Van Nguyen SUNSHINE MF II LLC c/o Lehrer Cumming 2nd 888 Seventh Avenue, FlOOr New York, NY 10019 Attn: John Sweeney SUNSHINE MF II LLC c/o Robinson & Cole LLP 20t11 666 Third Avenue, Floor New York, NY 10017 Attn: Gregory R. Faulkner SILVERLINING INTERIORS INC. 3"l 2091 Broadway, Floor New York, NY 10023 KRENTSEL GUZMAN HERBERT, LLP Attorneys for Plaintiff JAMES GEOFFREY 17 Battery Place, Suite 604 New York, New York 10004 (212) 227-2900 4 of 24 FILED: KINGS COUNTY CLERK 05/05/2023 04:57 PM INDEX NO. 508174/2023 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 05/05/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -------------------------------------------------------------------x Index # 508174/2023 JAMES GEOFFREY, Plaintiff, THIRD-PARTY -against- COMPLAINT SMITELL LLC, SMITELL B-1 LLC, and EXTELL DEVELOPMENT COMPANY, Defendants. -----------______________________________--------------_______________Ç SMITELL LLC, SMITELL B-1 LLC, and EXTELL DEVELOPMENT COMPANY, Third-Party Plaintiffs, -against- SUNSHINE MF II LLC and SILVERLINING INTERIORS, INC., Third-Party Defendants. ___________________________________________________________------_____Ç Defendants/Third-Party Plaintiffs, SMITELL LLC, SMITELL B-1 LLC, and EXTELL DEVELOPMENT COMPANY, by their attorneys, REBORE, THORPE & PISARELLO, P.C., as and for a Third-Party Complaint against the above named Third-Party Defendants, SUNSHINE MF II LLC and SILVERLINING INTERIORS, INC., allege upon information and belief: JURISDICTION AND PARTIES 1. At all times hereinafter mentioned, Defendant/Third-Party Plaintiff, SMITELL LLC (hereinafter referred to as "SMITELL") is a limited liability company authorized to conduct business in the State of New York with a principal place of business at 805 Third Avenue, New York, New York. 2. At all times hereinafter SMITELL B- mentioned, Defendant/Third-Party Plaintiff, 5 of 24 FILED: KINGS COUNTY CLERK 05/05/2023 04:57 PM INDEX NO. 508174/2023 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 05/05/2023 1 LLC (hereinafter referred to as "B-1") is a limited liability company authorized to conduct business in the State of New York with a principal place of business at 805 Third Avenue, New York, New York. 3. At all times hereinafter mentioned, Defendant/Third-Party Plaintiff, EXTELL DEVELOPMENT COMPANY (hereinafter referred to as "EXTELL") is a corporation authorized to conduct business in the State of New York with a principal place of business at 805 Third Avenue, New York, New York. 4. At all times hereinafter mentioned, the Third-Party Defendant, SUNSHINE MF II LLC (hereinafter, referred to as "SUNSHINE") is a Delaware limited liability company authorized to do business and doing business in the State of New York and maintaining a place of business at 12th 767 Fifth Avenue, Floor, New York, New York. 5. At all times hereinafter mentioned, the Third-Party Defendant, SILVERLINING INTERIORS INC. (hereinafter referred to as "SILVERLINING") in a New York corporation authorized to do business and doing business in the State of New York and maintaining a place of 3"l business at 2091 Broadway, Floor, New York, New York. 6. At all times hereinafter mentioned, the Third-Party Defendant, SUNSHINE is a foreign limited liability company that contracted to enter upon property and perform work in the City, County and State of New York, and is therefore subject to the jurisdiction and laws of the State of New York. 7. At all times hereinafter mentioned, the Third-Party Defendant, SUNSHINE, is a foreign business entity that provided goods and/or services in the City, County and State of New York, and is therefore subject to the jurisdiction and laws of the State of New York. 8. At all times hereinafter mentioned, the Third-Party Defendant, SILVERLINING, 6 of 24 FILED: KINGS COUNTY CLERK 05/05/2023 04:57 PM INDEX NO. 508174/2023 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 05/05/2023 is a New York corporation that performed construction services in the City, County and State of New York, and is therefore subject to the jurisdiction and laws of the State of New York. 9. At all times hereinafter mentioned, the Third-Party Defendant, SILVERLINING, is a New York corporation that provided goods and/or services in the City, County and State of New York, and is therefore subject to the jurisdiction and laws of the State of New York. UNDERLYING ACTION 10. That the Plaintiff, JAMES GEOFFREY, commenced an action for damages against Defendants, SMITELL, B-1 AND EXTELL by the filing of a Summons and Complaint on or about March 16, 2023 a copy of which is annexed hereto and made a part hereof. 11. That the Defendants, SMITELL, B-1 and EXTELL, appeared in this action by the filing and service of a Verified Answer on or about May 4, 2023, a copy of which is annexed hereto and made a part hereof. 12. That this action arises in connection with an alleged construction site accident involving Plaintiff, JAMES GEOFFREY, on January 30, 2023 at premises located at 217 West 57th Street, unit 118, New York, New York (hereinafter, referred to as "the premises"), for which Plaintiff claims to have sustained personal injuries and associated damages. LICENSE AGREEMENT BETWEEN SMITELL AND SUNSHINE Agreement" 13. That Third-Party Defendant, SUNSHINE, entered into a "License on March 4, 2020 with defendant SMITELL LLC c/o EXTELL DEVELOPMENT COMPANY, wherein SUNSHINE contracted as a Licensee for permission to enter upon the premises owned by SMITELL and performance certain construction work at the premises. 7 of 24 FILED: KINGS COUNTY CLERK 05/05/2023 04:57 PM INDEX NO. 508174/2023 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 05/05/2023 14. That the License Agreement contained, among other things, the following indemnity provisions requiring SUNSHINE, as Licensee, to indemnify SMITELL, B-1 and EXTELL, as Licensors: 8. Indemnity. a. To the fullest extent permitted by law, Licensee shall defend, indemnify and hold "C" harmless, Licensor, the parties listed in Exhibit (which may be updated by Licensor from time to time), the occupants of Licensor's Property and their respective managers, members, officers, directors, stockholders, beneficiaries, partners, representatives, agents, servants, contractors and employees (collectively, with respect to Licensor, its "Indemnitees "), from and against all claims, actions, costs, penalties, liens, violations, pnes, damages, losses(including loss ofuse and economic loss) and expenses, including, but not ' limited to, reasonable attorneys fees and disbursements (including reasonable attorneys' fees incurred in connection with the enforcement of this indemnification and direct claims against the Indemnitees for breach of this Agreement), arising out of or resulting from (but excluding any of the foregoing to the extent resulting from the willful misconduct or negligence of the Licensor or any of its Indemnitees : (i) the Work; (ii) any act or omission by Licensee, Licensee Parties or any party for whom Licensee is responsible, and/or (iii) Licensee 's failure to comply with its obligations set forth in Section 9. In the event of any claim against any Indemnitee by any employee of Licensee or Licensee Party, the indemnification obligation under this Section 8(a) shall not be limited in any way by any limitation on the amount or type of damages, compensation or benef its payable by or for Licensee or Licensee Parties under ' ' Workmans or Workers Compensation acts, disability benefit acts or other employee benef it acts. This indemnif ication obligation shall not be construed to negate, abridge or otherwise reduce any right or obligation of indemnity that otherwise would exist in favor of any Indemnitee from any source. . . . c. This Section 8 shall survive termination or expiration of this Agreement. 15. That Exhibit C to the License Agreement was the list of parties to be indemnified by SUNSHINE and included SMITELL and EXTELL. 16. That the License Agreement provides at Paragraph 25 that "(t)his agreement shall be binding upon and inure to the benefit of and be enforceable by the respective successors and hereto." assigns of the parties 8 of 24 FILED: KINGS COUNTY CLERK 05/05/2023 04:57 PM INDEX NO. 508174/2023 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 05/05/2023 17. That B-1 is the successor to SMITELL in ownership of the premises, with the apartment having been transferred by a deed dated January 26, 2023. 18. That this License Agreement between SUNSHINE and SMITELL also contained, among other things, the following provisions concerning insurance requirements which required SUNSHINE, as Licensee, to procure commercial general liability and commercial excess/umbrella insurance for the benefit of the Licensors, including SMITELL, EXTELL AND B-1 as additional insureds on a primary and non-contributory basis: 7. Insurance. a. Licensee shall for itself and shall cause GC and Contractors to, procure and maintain, at their sole cost and expense, until final completion of the Work, and for a period of three (3) years thereafter, such insurance as will protect the Licensor, Licensor's construction manager, Licensor's lender(s) and the Indemnitees (hereinafter defined) listed on Exhibit "C", from claims arising out of or resulting from the Work under this Agreement, whether performed by the Licensee, GC, Contractors or by anyone directly or indirectly employed by Licensee, or by anyone for whose acts Licensee may be liable. Such insurance "A-" shall be provided by an insurance carrier rated or better by A.M. Best and lawfully authorized to do business in the jurisdiction where the Work is being performed. b. The insurance required hereunder (except Worker's Compensation and Employer's Liability) shall include contractual liability coverage and additional insured coverage for the benefit of the Licensor, the Indemnitees and anyone else the Licensor is required to name, and shall specifically include coverage for completed operations. The insurance required to be carried by the Licensee and any contractors shall be PRIMARY AND NON-CONTRIBUTORY to the fullest extent permitted by law. With respect to each type of insurance specif led hereunder, the Licensor's insurances shall be excess to Licensee's insurance. The insurance required hereunder shall be without any exclusion or exception to any New York Labor Law claims and residential or condominium work. c. The Licensee warrants that the coverage provided under the commercial "occurrence" general liability policies shall be written on an basis with coverage as broad as the Insurance Service Office Inc 's form and that no policy provisions shall restrict, reduce, limit or otherwise impair contractual Indemnitees' liability coverage or the Licensor's or status as additional insured. 9 of 24 FILED: KINGS COUNTY CLERK 05/05/2023 04:57 PM INDEX NO. 508174/2023 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 05/05/2023 d. Not less than five (5) days prior to commencement of the Work and until final completion of the Work and for a period of three (3) years thereafter, Licensee shall provide Licensor with a certificate(s) of insurance evidencing the required insurance coverage with the limits stated below. The Licensee shall provide ' Licensor with thirty (30) days written notice of a change or cancellation in coverage. In addition, all insurance policies shall state that the insurer will provide Licensor thirty (30) days prior written notice of a change or cancellation in coverage. e. Unless otherwise stipulated in this Agreement, Licensee shall, and/or shall cause the GC and Contractors to, maintain the greater of the coverage they currently carry or the limits below specified for each of the following insurance coverages: Workers' i . Compensation and disability benef it insurance including Occupational Disease in the minimum amounts as required by the jurisdiction where the Work is performed; i i . Comprehensive Automobile Liability insurance with minimum limits of $1,000,000 combined single limit each accident, including bodily injury and property damage liability; i i i . Commercial General Liability insurance using an industry standard unmodif led coverage form including contractual liability with minimum limits of $2,000,000 each occurrence, $4,000,000 aggregate with either per project or per location endorsement for property damage and bodily injury; and i v . Excess or Umbrella Liability insurance (following the