Preview
FILED: NASSAU COUNTY CLERK 02/24/2023 11:12 PM INDEX NO. 604204/2014
NYSCEF DOC. NO. 350 RECEIVED NYSCEF: 02/24/2023
EXHIBIT “H”
FILED: NASSAU COUNTY CLERK 02/24/2023
11/09/2022 11:12
05:30 PM INDEX NO. 604204/2014
NYSCEF DOC. NO. 350
255 RECEIVED NYSCEF: 02/24/2023
11/09/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
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MICHAEL MESSINA,
Plaintiff,
Index No: 604204/2014
--against--
MORTON VILLAGE REALTY, INC. and PHILLIPS AMENDED THIRD-PARTY
INTERNATIONAL REALTY, INC., SUMMONS
Defendants.
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MORTON VILLAGE REALTY, INC. and PHILLIPS
INTERNATIONAL REALTY, INC.
Third-Party Plaintiffs,
--against--
MR. JOE’S PIZZERIA & RISTORANTE,
RUAGO, LLC d/b/a PIZZA DELIGHT, INC.,
ANTO, INC., GIUSEPPE FRANZELLA,
JOSEPH LOGLISCI, MICHAEL RUGGIERO,
DIG ENTERPRISE, INC., and PETE LAMARIANA,
Third-Party Defendants.
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TO THE ABOVE-NAMED THIRD-PARTY DEFENDANTS:
YOU ARE HEREBY SUMMONED to appear in this action by serving an Answer to the
annexed Amended Third-Party Complaint upon the undersigned attorneys within twenty (20) days
after the service, exclusive of the day of service, or within thirty (30) days after service is complete
if this summons is not personally delivered to you within the State of New York.
If you fail to provide an Answer or otherwise appear within the above referenced
timeframes, judgment will be taken against you by default for the relief demanded in the Amended
Third-Party Complaint, potentially with interest and costs from the date of occurrence.
The basis of the venue designated is the County in which the First Party Action is pending,
and the County of the alleged occurrence.
Dated: Elmsford, New York
November 9, 2022
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BROOKS & BERNE, PLLC
Attorneys for Defendants/Third-Party Plaintiffs
MORTON VILLAGE REALTY, INC. and PHILLIPS
INTERNATIONAL REALTY, INC.
By: __________________________________
Candace R. Johnson, Esq.
Richard Berne, Esq.
570 Taxter Road, Suite 550
Elmsford, New York 10523
(914) 364-2691
To:
DELL & DEAN, PLLC
Attorneys for Plaintiff
MICHAEL MESSINA
1225 Franklin Avenue, Suite 450
Garden City, New York 11530
(516) 880-9700
CONGDON, FLAHERTY, O’CALLAGHAN
REID, DONLON, TRAVIS & FISHLINGER
Attorneys for Third-Party Defendants
DIG ENTERPRISE, INC.
333 Earle Ovington Blvd., Suite 502
Uniondale, New York 11553
(516) 542-5900
ARMIENTI, DeBELLIS, & RHODEN, LLP
Attorneys for Third-Party Defendants
MICHAEL RUGGERIO,
i/s/h/a MR. JOE’S PIZZERIA & RISTORANTE
and RUAGO, LLC d/b/a PIZZA DELIGHT, INC.
170 Old Country Road, Suite 607
Mineola, New York 11501
(516) 877-1202
PROMPTLY FORWARD TO YOUR COMMERCIAL INSURANCE COMPANY
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
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MICHAEL MESSINA,
Plaintiff,
Index No: 604204/2014
--against--
MORTON VILLAGE REALTY, INC. and PHILLIPS AMENDED THIRD-PARTY
INTERNATIONAL REALTY, INC. COMPLAINT
Defendants.
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MORTON VILLAGE REALTY, INC. and PHILLIPS
INTERNATIONAL REALTY, INC.
Third-Party Plaintiffs,
--against--
MR. JOE’S PIZZERIA & RISTORANTE,
RUAGO, LLC d/b/a PIZZA DELIGHT, INC.,
ANTO, INC., GIUSEPPE FRANZELLA,
JOSEPH LOGLISCI, MICHAEL RUGGIERO,
DIG ENTERPRISE, INC., and PETE LAMARIANA,
Third-Party Defendants.
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Defendants/Third-Party Plaintiffs, MORTON VILLAGE REALTY, INC. and PHILLIPS
INTERNATIONAL REALTY, INC., by their attorneys, BROOKS & BERNE PLLC, for their
Amended Third-Party Complaint against the Third-Party Defendants, upon information and belief,
respectfully allege:
Annexed hereto and made a part hereof is Plaintiff’s Summons and Complaint,
Defendants’ Answers and Leases.
AS AND FOR THE FIRST CAUSE OF ACTION AGAINST MR. JOE’S PIZZERIA &
RISTORANTE, RUAGO, LLC d/b/a PIZZA DELIGHT, INC., ANTO, INC., GUISEPPE
FRANZELLA, JOSEPH LOGLISCI, MICHAEL RUGGIERO, DIG ENTERPRISE,
INC., AND PETE LAMARIANA FOR INDEMNIFICATION
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AND/OR CONTRIBUTION 1
1. At all times hereinafter mentioned, Defendants/Third-Party Plaintiffs, MORTON
VILLAGE REALTY, INC. and PHILLIPS INTERNATIONAL REALTY, INC. are the owners
of certain premises and/or place of business located at 1048 Old Country Road, County of Nassau,
State of New York.
2. That at all times herein mentioned, Third-Party Defendant, MR. JOE’S PIZZERIA
& RISTORANTE, was a tenant of Defendants/Third-Party Plaintiffs, MORTON VILLAGE
REALTY, INC. and PHILLIPS INTERNATIONAL REALTY, INC.
3. That at all times herein mentioned Third-Party Defendant, MR. JOE’S PIZZERIA
& RISTORANTE, was operating a business from aforementioned premises.
4. That at all times herein mentioned, Third-Party Defendant, RUAGO, LLC d/b/a
PIZZA DELIGHT, INC. was a tenant of Defendants/Third-Party Plaintiffs, MORTON VILLAGE
REALTY, INC. and PHILLIPS INTERNATIONAL REALTY, INC. pursuant to the lease dated
April 19, 1991.
5. That at all times herein mentioned, Third-Party Defendant, RUAGO, LLC d/b/a
PIZZA DELIGHT, INC., was operating a business from aforementioned premises.
6. That at all times herein mentioned, Third-Party Defendant, JOSEPH LOGLISCI,
was the owner of Third-Party Defendants, RUAGO, LLC d/b/a PIZZA DELIGHT, INC.
7. That at all times herein mentioned, Third-Party Defendant, MICHAEL
RUGGIERO, was the owner of Third-Party Defendants, RUAGO, LLC d/b/a PIZZA DELIGHT,
INC.
Third-Party Defendants ANTO INC. and GUISEPPE FRANZELLA were dismissed from the subject action by
1
way of an executed Stipulation of Discontinuance, filed with the Court on March 25, 2016. Third-Party Defendant
PETE LAMARIANA was dismissed from the subject action by way of the Court’s Decision and Order on Motion
Seq. #06, dated October 14, 2022.
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8. That at all times herein mentioned, Third-Party Defendant, MICHAEL
RUGGIERO, was a member of Third-Party Defendants, RUAGO, LLC d/b/a PIZZA DELIGHT,
INC.
9. That at all times herein mentioned, Third-Party Defendant ANTO, INC., was a
tenant of Defendants/ Third-Party Plaintiffs, MORTON VILLAGE REALTY, INC. and
PHILLIPS INTERNATIONAL REALTY, INC.
10. That at all times herein mentioned, Third-Party Defendant, ANTO, INC., was
operating a business from aforementioned premises.
11. That at all times herein mentioned Third-Party Defendant, GIUSEPPE
FRANZELLA, was a tenant of Defendants/Third-Party Plaintiffs, MORTON VILLAGE
REALTY, INC. and PHILLIPS INTERNATIONAL REALTY, INC.
12. That at all times herein mentioned, Third-Party Defendant, GIUSSEPPE
FRANZELLA, was operating a business from aforementioned premises.
13. That at all times herein mentioned, Third-Party Defendant GIUSSEPPE
FRANZELLA, was the owner of Third-Party Defendant, ANTO, INC.
14. That at all times herein mentioned, Third-Party Defendants, ANTO, INC. and
GIUSEPPE FRANZELLA, subleased the aforementioned premises and/or business to Third-Party
Defendant, RUAGO LLC d/b/a PIZZA DELIGHT, INC.
15. That at all times herein mentioned, Third-Party Defendant, DIG ENTERPRISE,
INC. is a New York State corporation with a business address of 70 Vondran Street, Huntington
Station, New York 11746.
16. That at all times herein mentioned, Third-Party Defendant, DIG ENTERPRISE,
INC. its agents, servants and/or employees were in the business maintenance.
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17. That at all times herein mentioned Third-Party Defendant, DIG ENTERPRISE,
INC., its agents, servants and/or employees had a duty to maintain in a reasonable, safe condition
in snow and/or ice removal of the aforesaid premises.
18. That at all times herein mentioned Third-Party Defendant, PETE LAMARIANA,
is the owner of Third-Party Defendant, DIG ENTERPRISE, INC.
19. That at all times herein mentioned Third-Party Defendant, PETE LAMARIANA,
his agents, servants and/or employees had a duty to maintain in a reasonable safe condition in snow
and/or ice removal of the aforesaid premises.
20. That at all times herein mentioned Third-Party Defendants, DIG ENTERPRISE,
INC. and PETE LAMARIAMA, were under contract with Defendants/Third-Party Plaintiffs,
MORTON REALTY, INC. and PHILLIPS INTERNATIONAL REALTY, INC. to maintain in a
reasonable, safe condition in snow and/or ice removal of the aforesaid premises.
21. If Defendants/Third-Party Plaintiffs, MORTON VILLAGE REALTY, INC. and
PHILLIPS INTERNATIONAL REALTY, INC. are liable to the plaintiff, then he is entitled to
indemnification and/or contribution pursuant to the terms of the written contract/ lease annexed
hereto between MORTON VILLAGE REALTY, INC. and PHILLIPS INTERNATIONAL
REALTY, INC. and MR. JOE’S PIZZERIA & RISTORANTE, RUAGO, LLC d/b/a PIZZA
DELIGHT, INC., ANTO, INC., GIUSEPPE FRANZELLA, JOSEPH LOGLISCI, MICHAEL
RUGGERIO, DIG ENTEPRISE, INC. and PETE LAMARIANA, requiring indemnification of
Defendants/Third-Party Plaintiffs.
22. That if the Plaintiff, MICHAEL MESSINA, was allegedly caused to sustain injury
at the time and place set forth in the Plaintiff’s Complaint through any carelessness or negligence
other than the carelessness and negligence of said Plaintiff, then such damages were caused solely
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by reason of the Third-Party Defendants’ carelessness and negligence.
23. By reason of the foregoing, if the Plaintiff, MICHAEL MESSINA, obtains
judgment in the above-captioned action against the Defendant/Third-Party Plaintiffs, then, the
Defendants/Third-Party Plaintiffs are entitled to and shall seek indemnity, in whole or in part, from
the Third-Party Defendants.
AS AND FOR THE SECOND CAUSE OF ACTION AGAINST MR. JOE’S PIZZERIA &
RISTORANTE, RUAGO, LLC d/b/a PIZZA DELIGHT, INC., MICHAEL RUGGIERO,
AND DIG ENTERPRISE, INC. FOR BREACH OF CONTRACT FOR FAILURE TO
PROCURE INSURANCE
24. Defendants/Third-Party Plaintiffs repeat, reiterate and re-allege each and every of
the foregoing allegations contained in paragraphs “1” through “23” above, with the same force and
effect as if set forth more fully at length herein.
25. Pursuant to contract and/or lease, Third-Party Defendants, MR. JOE’S PIZZERIA
& RISTORANTE, RUAGO, LLC d/b/a PIZZA DELIGHT, INC., MICHAEL RUGGIERO, and
DIG ENTERPRISE, INC. were required to obtain commercial general liability insurance
naming Defendants/Third-Party Plaintiffs MORTON VILLAGE REALTY, INC. and PHILLIPS
INTERNATIONAL REALTY, INC. as additional insureds covering, defending and indemnifying
Defendants/Third-Party Plaintiffs MORTON VILLAGE REALTY, INC. and PHILLIPS
INTERNATIONAL REALTY, INC. against the loss described in Plaintiff’s Complaint.
26. Third-Party Defendants, MR. JOE’S PIZZERIA & RISTORANTE, RUAGO, LLC
d/b/a PIZZA DELIGHT, INC., MICHAEL RUGGIERO, and DIG ENTERPRISE, INC. failed to
procure commercial general liability insurance naming the Defendants/Third-Party
Plaintiffs MORTON VILLAGE REALTY, INC. and PHILLIPS INTERNATIONAL REALTY,
INC. as additional insureds.
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27. That as a result Third-Party Defendants, MR. JOE’S PIZZERIA & RISTORANTE,
RUAGO, LLC d/b/a PIZZA DELIGHT, INC., MICHAEL RUGGIERO, and DIG ENTERPRISE,
INC.’s breach of contract, Defendants/Third-Party Plaintiffs MORTON VILLAGE REALTY,
INC. and PHILLIPS INTERNATIONAL REALTY, INC. are entitled to damages and
indemnification for any judgment recovered against Defendants/Third-Party Plaintiffs MORTON
VILLAGE REALTY, INC. and PHILLIPS INTERNATIONAL REALTY, INC., including, but
not limited to, the litigation costs that Defendants/Third-Party Plaintiffs MORTON VILLAGE
REALTY, INC. and PHILLIPS INTERNATIONAL REALTY, INC. have paid since the
commencement of the underlying action, or will pay in the future, in defending the instant lawsuit.
WHEREFORE, in the event that Plaintiff MICHAEL MESSINA, obtains judgment
against Defendants/Third-Party Plaintiffs, MORTON VILLAGE REALTY, INC. and PHILLIPS
INTERNATIONAL REALTY, INC., in the primary action, then Defendants/Third-Party
Plaintiffs, MORTON VILLAGE REALTY, INC. and PHILLIPS INTERNATIONAL REALTY,
INC., hereby demand judgment of indemnification against Third-Party Defendants for the amount
of Plaintiff’s said judgment or, in the alternative, for such part of said judgment as is apportionable
to the negligence of Third-Party Defendants as compared with the alleged negligence, if any, of
Defendants/Third-Party Plaintiffs, together with interest, attorneys’ fees, costs and disbursements
of this action due to Third-Party Defendants breach of contract.
Dated: Elmsford, New York
November 9, 2022
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BROOKS & BERNE, PLLC
Attorneys for Defendants/Third-Party Plaintiffs
MORTON VILLAGE REALTY, INC. and PHILLIPS
INTERNATIONAL REALTY, INC.
By: __________________________________
Candace R. Johnson, Esq.
Richard Berne, Esq.
570 Taxter Road, Suite 550
Elmsford, New York 10523
(914) 364-2691
To:
DELL & DEAN, PLLC
Attorneys for Plaintiff
MICHAEL MESSINA
1225 Franklin Avenue, Suite 450
Garden City, New York 11530
(516) 880-9700
CONGDON, FLAHERTY, O’CALLAGHAN
REID, DONLON, TRAVIS & FISHLINGER
Attorneys for Third-Party Defendants
DIG ENTERPRISE, INC.
333 Earle Ovington Blvd., Suite 502
Uniondale, New York 11553
(516) 542-5900
ARMIENTI, DeBELLIS, & RHODEN, LLP
Attorneys for Third-Party Defendants
RUAGO, LLC d/b/a MR. JOE’S and MICHAEL RUGGERIO,
i/s/h/a MR. JOE’S PIZZERIA & RISTORANTE
and RUAGO, LLC d/b/a PIZZA DELIGHT, INC.
170 Old Country Road, Suite 607
Mineola, New York 11501
(516) 877-1202
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Preview
FILED: NASSAU COUNTY CLERK 02/24/2023 11:12 PM INDEX NO. 604204/2014 NYSCEF DOC. NO. 350 RECEIVED NYSCEF: 02/24/2023 EXHIBIT “H” FILED: NASSAU COUNTY CLERK 02/24/2023 11/09/2022 11:12 05:30 PM INDEX NO. 604204/2014 NYSCEF DOC. NO. 350 255 RECEIVED NYSCEF: 02/24/2023 11/09/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU -------------------------------------------------------------------X MICHAEL MESSINA, Plaintiff, Index No: 604204/2014 --against-- MORTON VILLAGE REALTY, INC. and PHILLIPS AMENDED THIRD-PARTY INTERNATIONAL REALTY, INC., SUMMONS Defendants. -------------------------------------------------------------------X MORTON VILLAGE REALTY, INC. and PHILLIPS INTERNATIONAL REALTY, INC. Third-Party Plaintiffs, --against-- MR. JOE’S PIZZERIA & RISTORANTE, RUAGO, LLC d/b/a PIZZA DELIGHT, INC., ANTO, INC., GIUSEPPE FRANZELLA, JOSEPH LOGLISCI, MICHAEL RUGGIERO, DIG ENTERPRISE, INC., and PETE LAMARIANA, Third-Party Defendants. ------------------------------------------------------------------X TO THE ABOVE-NAMED THIRD-PARTY DEFENDANTS: YOU ARE HEREBY SUMMONED to appear in this action by serving an Answer to the annexed Amended Third-Party Complaint upon the undersigned attorneys within twenty (20) days after the service, exclusive of the day of service, or within thirty (30) days after service is complete if this summons is not personally delivered to you within the State of New York. If you fail to provide an Answer or otherwise appear within the above referenced timeframes, judgment will be taken against you by default for the relief demanded in the Amended Third-Party Complaint, potentially with interest and costs from the date of occurrence. The basis of the venue designated is the County in which the First Party Action is pending, and the County of the alleged occurrence. Dated: Elmsford, New York November 9, 2022 1 1 of 9 FILED: NASSAU COUNTY CLERK 02/24/2023 11/09/2022 11:12 05:30 PM INDEX NO. 604204/2014 NYSCEF DOC. NO. 350 255 RECEIVED NYSCEF: 02/24/2023 11/09/2022 BROOKS & BERNE, PLLC Attorneys for Defendants/Third-Party Plaintiffs MORTON VILLAGE REALTY, INC. and PHILLIPS INTERNATIONAL REALTY, INC. By: __________________________________ Candace R. Johnson, Esq. Richard Berne, Esq. 570 Taxter Road, Suite 550 Elmsford, New York 10523 (914) 364-2691 To: DELL & DEAN, PLLC Attorneys for Plaintiff MICHAEL MESSINA 1225 Franklin Avenue, Suite 450 Garden City, New York 11530 (516) 880-9700 CONGDON, FLAHERTY, O’CALLAGHAN REID, DONLON, TRAVIS & FISHLINGER Attorneys for Third-Party Defendants DIG ENTERPRISE, INC. 333 Earle Ovington Blvd., Suite 502 Uniondale, New York 11553 (516) 542-5900 ARMIENTI, DeBELLIS, & RHODEN, LLP Attorneys for Third-Party Defendants MICHAEL RUGGERIO, i/s/h/a MR. JOE’S PIZZERIA & RISTORANTE and RUAGO, LLC d/b/a PIZZA DELIGHT, INC. 170 Old Country Road, Suite 607 Mineola, New York 11501 (516) 877-1202 PROMPTLY FORWARD TO YOUR COMMERCIAL INSURANCE COMPANY 2 2 of 9 FILED: NASSAU COUNTY CLERK 02/24/2023 11/09/2022 11:12 05:30 PM INDEX NO. 604204/2014 NYSCEF DOC. NO. 350 255 RECEIVED NYSCEF: 02/24/2023 11/09/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU -------------------------------------------------------------------X MICHAEL MESSINA, Plaintiff, Index No: 604204/2014 --against-- MORTON VILLAGE REALTY, INC. and PHILLIPS AMENDED THIRD-PARTY INTERNATIONAL REALTY, INC. COMPLAINT Defendants. -------------------------------------------------------------------X MORTON VILLAGE REALTY, INC. and PHILLIPS INTERNATIONAL REALTY, INC. Third-Party Plaintiffs, --against-- MR. JOE’S PIZZERIA & RISTORANTE, RUAGO, LLC d/b/a PIZZA DELIGHT, INC., ANTO, INC., GIUSEPPE FRANZELLA, JOSEPH LOGLISCI, MICHAEL RUGGIERO, DIG ENTERPRISE, INC., and PETE LAMARIANA, Third-Party Defendants. -------------------------------------------------------------------X Defendants/Third-Party Plaintiffs, MORTON VILLAGE REALTY, INC. and PHILLIPS INTERNATIONAL REALTY, INC., by their attorneys, BROOKS & BERNE PLLC, for their Amended Third-Party Complaint against the Third-Party Defendants, upon information and belief, respectfully allege: Annexed hereto and made a part hereof is Plaintiff’s Summons and Complaint, Defendants’ Answers and Leases. AS AND FOR THE FIRST CAUSE OF ACTION AGAINST MR. JOE’S PIZZERIA & RISTORANTE, RUAGO, LLC d/b/a PIZZA DELIGHT, INC., ANTO, INC., GUISEPPE FRANZELLA, JOSEPH LOGLISCI, MICHAEL RUGGIERO, DIG ENTERPRISE, INC., AND PETE LAMARIANA FOR INDEMNIFICATION 3 3 of 9 FILED: NASSAU COUNTY CLERK 02/24/2023 11/09/2022 11:12 05:30 PM INDEX NO. 604204/2014 NYSCEF DOC. NO. 350 255 RECEIVED NYSCEF: 02/24/2023 11/09/2022 AND/OR CONTRIBUTION 1 1. At all times hereinafter mentioned, Defendants/Third-Party Plaintiffs, MORTON VILLAGE REALTY, INC. and PHILLIPS INTERNATIONAL REALTY, INC. are the owners of certain premises and/or place of business located at 1048 Old Country Road, County of Nassau, State of New York. 2. That at all times herein mentioned, Third-Party Defendant, MR. JOE’S PIZZERIA & RISTORANTE, was a tenant of Defendants/Third-Party Plaintiffs, MORTON VILLAGE REALTY, INC. and PHILLIPS INTERNATIONAL REALTY, INC. 3. That at all times herein mentioned Third-Party Defendant, MR. JOE’S PIZZERIA & RISTORANTE, was operating a business from aforementioned premises. 4. That at all times herein mentioned, Third-Party Defendant, RUAGO, LLC d/b/a PIZZA DELIGHT, INC. was a tenant of Defendants/Third-Party Plaintiffs, MORTON VILLAGE REALTY, INC. and PHILLIPS INTERNATIONAL REALTY, INC. pursuant to the lease dated April 19, 1991. 5. That at all times herein mentioned, Third-Party Defendant, RUAGO, LLC d/b/a PIZZA DELIGHT, INC., was operating a business from aforementioned premises. 6. That at all times herein mentioned, Third-Party Defendant, JOSEPH LOGLISCI, was the owner of Third-Party Defendants, RUAGO, LLC d/b/a PIZZA DELIGHT, INC. 7. That at all times herein mentioned, Third-Party Defendant, MICHAEL RUGGIERO, was the owner of Third-Party Defendants, RUAGO, LLC d/b/a PIZZA DELIGHT, INC. Third-Party Defendants ANTO INC. and GUISEPPE FRANZELLA were dismissed from the subject action by 1 way of an executed Stipulation of Discontinuance, filed with the Court on March 25, 2016. Third-Party Defendant PETE LAMARIANA was dismissed from the subject action by way of the Court’s Decision and Order on Motion Seq. #06, dated October 14, 2022. 4 4 of 9 FILED: NASSAU COUNTY CLERK 02/24/2023 11/09/2022 11:12 05:30 PM INDEX NO. 604204/2014 NYSCEF DOC. NO. 350 255 RECEIVED NYSCEF: 02/24/2023 11/09/2022 8. That at all times herein mentioned, Third-Party Defendant, MICHAEL RUGGIERO, was a member of Third-Party Defendants, RUAGO, LLC d/b/a PIZZA DELIGHT, INC. 9. That at all times herein mentioned, Third-Party Defendant ANTO, INC., was a tenant of Defendants/ Third-Party Plaintiffs, MORTON VILLAGE REALTY, INC. and PHILLIPS INTERNATIONAL REALTY, INC. 10. That at all times herein mentioned, Third-Party Defendant, ANTO, INC., was operating a business from aforementioned premises. 11. That at all times herein mentioned Third-Party Defendant, GIUSEPPE FRANZELLA, was a tenant of Defendants/Third-Party Plaintiffs, MORTON VILLAGE REALTY, INC. and PHILLIPS INTERNATIONAL REALTY, INC. 12. That at all times herein mentioned, Third-Party Defendant, GIUSSEPPE FRANZELLA, was operating a business from aforementioned premises. 13. That at all times herein mentioned, Third-Party Defendant GIUSSEPPE FRANZELLA, was the owner of Third-Party Defendant, ANTO, INC. 14. That at all times herein mentioned, Third-Party Defendants, ANTO, INC. and GIUSEPPE FRANZELLA, subleased the aforementioned premises and/or business to Third-Party Defendant, RUAGO LLC d/b/a PIZZA DELIGHT, INC. 15. That at all times herein mentioned, Third-Party Defendant, DIG ENTERPRISE, INC. is a New York State corporation with a business address of 70 Vondran Street, Huntington Station, New York 11746. 16. That at all times herein mentioned, Third-Party Defendant, DIG ENTERPRISE, INC. its agents, servants and/or employees were in the business maintenance. 5 5 of 9 FILED: NASSAU COUNTY CLERK 02/24/2023 11/09/2022 11:12 05:30 PM INDEX NO. 604204/2014 NYSCEF DOC. NO. 350 255 RECEIVED NYSCEF: 02/24/2023 11/09/2022 17. That at all times herein mentioned Third-Party Defendant, DIG ENTERPRISE, INC., its agents, servants and/or employees had a duty to maintain in a reasonable, safe condition in snow and/or ice removal of the aforesaid premises. 18. That at all times herein mentioned Third-Party Defendant, PETE LAMARIANA, is the owner of Third-Party Defendant, DIG ENTERPRISE, INC. 19. That at all times herein mentioned Third-Party Defendant, PETE LAMARIANA, his agents, servants and/or employees had a duty to maintain in a reasonable safe condition in snow and/or ice removal of the aforesaid premises. 20. That at all times herein mentioned Third-Party Defendants, DIG ENTERPRISE, INC. and PETE LAMARIAMA, were under contract with Defendants/Third-Party Plaintiffs, MORTON REALTY, INC. and PHILLIPS INTERNATIONAL REALTY, INC. to maintain in a reasonable, safe condition in snow and/or ice removal of the aforesaid premises. 21. If Defendants/Third-Party Plaintiffs, MORTON VILLAGE REALTY, INC. and PHILLIPS INTERNATIONAL REALTY, INC. are liable to the plaintiff, then he is entitled to indemnification and/or contribution pursuant to the terms of the written contract/ lease annexed hereto between MORTON VILLAGE REALTY, INC. and PHILLIPS INTERNATIONAL REALTY, INC. and MR. JOE’S PIZZERIA & RISTORANTE, RUAGO, LLC d/b/a PIZZA DELIGHT, INC., ANTO, INC., GIUSEPPE FRANZELLA, JOSEPH LOGLISCI, MICHAEL RUGGERIO, DIG ENTEPRISE, INC. and PETE LAMARIANA, requiring indemnification of Defendants/Third-Party Plaintiffs. 22. That if the Plaintiff, MICHAEL MESSINA, was allegedly caused to sustain injury at the time and place set forth in the Plaintiff’s Complaint through any carelessness or negligence other than the carelessness and negligence of said Plaintiff, then such damages were caused solely 6 6 of 9 FILED: NASSAU COUNTY CLERK 02/24/2023 11/09/2022 11:12 05:30 PM INDEX NO. 604204/2014 NYSCEF DOC. NO. 350 255 RECEIVED NYSCEF: 02/24/2023 11/09/2022 by reason of the Third-Party Defendants’ carelessness and negligence. 23. By reason of the foregoing, if the Plaintiff, MICHAEL MESSINA, obtains judgment in the above-captioned action against the Defendant/Third-Party Plaintiffs, then, the Defendants/Third-Party Plaintiffs are entitled to and shall seek indemnity, in whole or in part, from the Third-Party Defendants. AS AND FOR THE SECOND CAUSE OF ACTION AGAINST MR. JOE’S PIZZERIA & RISTORANTE, RUAGO, LLC d/b/a PIZZA DELIGHT, INC., MICHAEL RUGGIERO, AND DIG ENTERPRISE, INC. FOR BREACH OF CONTRACT FOR FAILURE TO PROCURE INSURANCE 24. Defendants/Third-Party Plaintiffs repeat, reiterate and re-allege each and every of the foregoing allegations contained in paragraphs “1” through “23” above, with the same force and effect as if set forth more fully at length herein. 25. Pursuant to contract and/or lease, Third-Party Defendants, MR. JOE’S PIZZERIA & RISTORANTE, RUAGO, LLC d/b/a PIZZA DELIGHT, INC., MICHAEL RUGGIERO, and DIG ENTERPRISE, INC. were required to obtain commercial general liability insurance naming Defendants/Third-Party Plaintiffs MORTON VILLAGE REALTY, INC. and PHILLIPS INTERNATIONAL REALTY, INC. as additional insureds covering, defending and indemnifying Defendants/Third-Party Plaintiffs MORTON VILLAGE REALTY, INC. and PHILLIPS INTERNATIONAL REALTY, INC. against the loss described in Plaintiff’s Complaint. 26. Third-Party Defendants, MR. JOE’S PIZZERIA & RISTORANTE, RUAGO, LLC d/b/a PIZZA DELIGHT, INC., MICHAEL RUGGIERO, and DIG ENTERPRISE, INC. failed to procure commercial general liability insurance naming the Defendants/Third-Party Plaintiffs MORTON VILLAGE REALTY, INC. and PHILLIPS INTERNATIONAL REALTY, INC. as additional insureds. 7 7 of 9 FILED: NASSAU COUNTY CLERK 02/24/2023 11/09/2022 11:12 05:30 PM INDEX NO. 604204/2014 NYSCEF DOC. NO. 350 255 RECEIVED NYSCEF: 02/24/2023 11/09/2022 27. That as a result Third-Party Defendants, MR. JOE’S PIZZERIA & RISTORANTE, RUAGO, LLC d/b/a PIZZA DELIGHT, INC., MICHAEL RUGGIERO, and DIG ENTERPRISE, INC.’s breach of contract, Defendants/Third-Party Plaintiffs MORTON VILLAGE REALTY, INC. and PHILLIPS INTERNATIONAL REALTY, INC. are entitled to damages and indemnification for any judgment recovered against Defendants/Third-Party Plaintiffs MORTON VILLAGE REALTY, INC. and PHILLIPS INTERNATIONAL REALTY, INC., including, but not limited to, the litigation costs that Defendants/Third-Party Plaintiffs MORTON VILLAGE REALTY, INC. and PHILLIPS INTERNATIONAL REALTY, INC. have paid since the commencement of the underlying action, or will pay in the future, in defending the instant lawsuit. WHEREFORE, in the event that Plaintiff MICHAEL MESSINA, obtains judgment against Defendants/Third-Party Plaintiffs, MORTON VILLAGE REALTY, INC. and PHILLIPS INTERNATIONAL REALTY, INC., in the primary action, then Defendants/Third-Party Plaintiffs, MORTON VILLAGE REALTY, INC. and PHILLIPS INTERNATIONAL REALTY, INC., hereby demand judgment of indemnification against Third-Party Defendants for the amount of Plaintiff’s said judgment or, in the alternative, for such part of said judgment as is apportionable to the negligence of Third-Party Defendants as compared with the alleged negligence, if any, of Defendants/Third-Party Plaintiffs, together with interest, attorneys’ fees, costs and disbursements of this action due to Third-Party Defendants breach of contract. Dated: Elmsford, New York November 9, 2022 8 8 of 9 FILED: NASSAU COUNTY CLERK 02/24/2023 11/09/2022 11:12 05:30 PM INDEX NO. 604204/2014 NYSCEF DOC. NO. 350 255 RECEIVED NYSCEF: 02/24/2023 11/09/2022 BROOKS & BERNE, PLLC Attorneys for Defendants/Third-Party Plaintiffs MORTON VILLAGE REALTY, INC. and PHILLIPS INTERNATIONAL REALTY, INC. By: __________________________________ Candace R. Johnson, Esq. Richard Berne, Esq. 570 Taxter Road, Suite 550 Elmsford, New York 10523 (914) 364-2691 To: DELL & DEAN, PLLC Attorneys for Plaintiff MICHAEL MESSINA 1225 Franklin Avenue, Suite 450 Garden City, New York 11530 (516) 880-9700 CONGDON, FLAHERTY, O’CALLAGHAN REID, DONLON, TRAVIS & FISHLINGER Attorneys for Third-Party Defendants DIG ENTERPRISE, INC. 333 Earle Ovington Blvd., Suite 502 Uniondale, New York 11553 (516) 542-5900 ARMIENTI, DeBELLIS, & RHODEN, LLP Attorneys for Third-Party Defendants RUAGO, LLC d/b/a MR. JOE’S and MICHAEL RUGGERIO, i/s/h/a MR. JOE’S PIZZERIA & RISTORANTE and RUAGO, LLC d/b/a PIZZA DELIGHT, INC. 170 Old Country Road, Suite 607 Mineola, New York 11501 (516) 877-1202 9 9 of 9