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FILED: ERIE COUNTY CLERK 03/18/2021 04:59 PM INDEX NO. 809591/2020
NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 03/18/2021
EXHIBIT B
FILED: ERIE COUNTY CLERK 03/18/2021 04:59 PM INDEX NO. 809591/2020
NYSCEF DOC. NO. 3
50 RECEIVED NYSCEF: 10/20/2020
03/18/2021
STATE OF NEW YORK
SUPREME COURT : COUNTY OF ERIE
___________________________________________________
UTICA NATIONAL INSURANCE COMPANY OF
OHIO AS SUBROGEE OF SPRINGVILLE-GRIFFITH
INSTITUTE CENTRAL SCHOOL DISTRICT,
Plaintiff, ANSWER WITH
DEFENSES,
v. CROSS-CLAIMS AND
COUNTERCLAIM
CONCEPT CONSTRUCTION CORP.,
ARRIC CORP.,
GUARD CONTRACTING CORP., and Index #: 809591/2020
STROMECKI ENGINEERS, P.C.,
Defendants.
___________________________________________________
Defendant Concept Construction Corp. (“Concept”), by its attorneys,
Duke, Holzman, Photiadis & Gresens LLP, for its answer with defenses, cross-
claims and counterclaim to plaintiff’s (“plaintiff” or “Utica Mutual”) complaint,
alleges, upon knowledge as to itself and upon information and belief as to all
other matters, as follows:
1. Admits the allegations contained in paragraphs 5, 6 and 7.
2. Admits, upon information and belief, the allegations
contained in paragraphs 2, 9, 18, 19, 20 and 23.
3. Denies the allegations contained in paragraph 21.
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4. Denies knowledge or information sufficient to form a belief as
to the allegations contained in paragraphs 1, 3, 4, 8, 10, 11, 12, 13, 14, 15, 16
and 24.
5. Neither admits nor denies the allegations contained in
paragraph 17, but refers to the documents and things specified therein for their
exact terms, legal force and effect. If a court should disagree with the foregoing
response, then the allegations are denied and the plaintiff is left to its proof.
6. Neither admits nor denies the allegations contained in
paragraph 25, upon the ground that said allegations call for legal conclusions to
which no response is required. If a court should disagree with the foregoing
response, then the allegations are denied and the plaintiff is left to its proof.
7. Denies all allegations not previously answered.
FIRST DEFENSE
8. Under date of April 9, 2019, Concept entered into a written
contract with the Springville-Griffith Institute Central School District (“School
District”) for a project known as Springville-Griffith Institute Central School
District, Capital Project – PTECH Academy, Additions and Alterations Work:
SED No. 14-11-01-06-0-006-001 – Springville P Tech Academy. The contract
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documents that were included are AIA Document A132-2009 Standard Form of
Agreement Between Owner and Contractor, Construction Manager as Adviser
Edition and AIA Document A232 – 2009, General Conditions of the Contract for
Construction, Construction Manager as Adviser Edition (“General Conditions”).
Copies of the aforesaid contract documents are collectively annexed as
Exhibit A.
9. Section 11.3.7 of the General Conditions reads, in part, as
follows:
Ҥ 11.3.7 Waivers of Subrogation. The Owner and
Contractor waive all rights against (1) each other and any of
their respective subcontractors, sub-subcontractors, agents
and employees, and (2) the Construction Manager,
Construction Manager’s consultants, Architect, Architect’s
consultants, separate contractors described in Article 6, if
any, and any of their respective subcontractors, sub-
subcontractors, agents, and employees, for damages caused
by fire or other causes of loss to the extent of proceeds under
property insurance obtained pursuant to this Section 11.3 or
other property insurance applicable to the Work, except such
rights as the Owner and Contractor may have to the proceeds
of such insurance held by the Owner”.
* * *
“A waiver of subrogation is effective as to a person or entity
even though that person or entity would otherwise have a duty
of indemnification, contractual or otherwise, did not pay the
insurance premium directly or indirectly, and whether or not
the person or entity has an insurable interest in the property
damaged.”
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10. By reason of the foregoing, the plaintiff is precluded from
recovering and the claims attempted to be alleged in the complaint should be
dismissed in their entirety.
SECOND DEFENSE
11. Some or all of the claims attempted to be alleged in the
complaint are barred by the doctrine of waiver.
THIRD DEFENSE
12. Some or all of the claims attempted to be alleged in the
complaint are barred by the doctrine of estoppel.
FOURTH DEFENSE
13. Some or all of the claims attempted to be alleged in the
complaint are barred by the doctrine of unclean hands.
FIFTH DEFENSE
14. Some or all of the claims attempted to be alleged in the
complaint are barred by reason of documentary evidence.
SIXTH DEFENSE
15. Some or all of the claims attempted to be alleged in the
complaint are barred because plaintiff has failed to mitigate any damages that it
may claim to have incurred.
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SEVENTH DEFENSE AND CROSS-CLAIMS
(against Arric Corp., Guard Contracting Corp. and
Stromecki Engineers, P.C.)
16. Concept denies any and all responsibility and liability for the
claims attempted to be set forth in the complaint, but if plaintiff recovers a
judgment against Concept, then the liability of Concept will have been brought
about or caused by the contract breaches, performance failures, acts, omissions,
delays and inefficiencies of defendants Arric Corp. ("Arric"), Guard Contracting
Corp. ("Guard") and/or Stromecki Engineers, P.C. ("Stromecki") and Concept
shall be entitled to full or partial indemnification from said defendants, jointly
and severally, together with judgment against said defendants, jointly and
severally, for all costs, expenses, disbursements and attorneys’ fees incurred in
the defense of this action, plus appropriate interest.
COUNTERCLAIM
17. Concept realleges the preceding paragraphs with the same
force and effect as though set forth again in full.
18. The General Conditions of the contract between Concept and
the School District contain a clear an unequivocal waiver of subrogation which
is binding on the School District and on Utica Mutual as the School District’s
subrogee. The waivers of subrogation contained in §11.3.7 bar, preclude and
estop the claims attempted to be asserted in the complaint.
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19. By reason of the foregoing, the plaintiff’s claims are frivolous
within meaning of §130-1.1 of the Rules of the Chief Administrator of the Courts
(“Rules”). Therefore, if the plaintiff continues to pursue this frivolous action,
Concept is entitled to an award of costs and/or sanctions pursuant to §130-1.2
of the Rules.
WHEREFORE, Concept demands judgment as follows:
a. Dismissing the complaint in its entirety, on the merits and
with prejudice; and
b. Awarding costs and sanctions in the form of Concept’s legal
fees to dismiss this frivolous lawsuit pursuant to Part 130 of the Rules; and
c. In the event plaintiff recovers a judgment against Concept,
judgment against Arric, Guard and/or Stromecki for full or partial
indemnification from said defendants, jointly and severally, together with
judgment against said defendants, jointly and severally, for all costs, expenses,
disbursements and attorneys’ fees incurred in the defense of this action, plus
appropriate interest; and
d. Directing such other and further relief as the Court finds just
and proper, together with the costs and disbursements of this action.
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03/18/2021
Dated: October 20, 2020
Buffalo, New York
DUKE, HOLZMAN, PHOTIADIS & GRESENS LLP
Attorneys for Defendant
Concept Construction Corp.
s/James W. Gresens
By ______________________________________
James W. Gresens
jwgresens@dhpglaw.com
701 Seneca Street, Suite 750
Buffalo, New York 14210
(716) 855-1111
TO: Jerry Marti, Esq.
MURA & STORM, PLLC
Attorneys for Plaintiff
Utica National Insurance Company of
Ohio As Subrogee of Springville-Griffith
Institute Central School District
930 Rand Building
14 Lafayette Square
Buffalo, New York 14203
(716) 855-2800
Jerry.marti@muralaw.com
G:\L\Concept\Springville-Griffith (5008.2001)\Pl\Gen\ans102020.docx
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Preview
FILED: ERIE COUNTY CLERK 03/18/2021 04:59 PM INDEX NO. 809591/2020 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 03/18/2021 EXHIBIT B FILED: ERIE COUNTY CLERK 03/18/2021 04:59 PM INDEX NO. 809591/2020 NYSCEF DOC. NO. 3 50 RECEIVED NYSCEF: 10/20/2020 03/18/2021 STATE OF NEW YORK SUPREME COURT : COUNTY OF ERIE ___________________________________________________ UTICA NATIONAL INSURANCE COMPANY OF OHIO AS SUBROGEE OF SPRINGVILLE-GRIFFITH INSTITUTE CENTRAL SCHOOL DISTRICT, Plaintiff, ANSWER WITH DEFENSES, v. CROSS-CLAIMS AND COUNTERCLAIM CONCEPT CONSTRUCTION CORP., ARRIC CORP., GUARD CONTRACTING CORP., and Index #: 809591/2020 STROMECKI ENGINEERS, P.C., Defendants. ___________________________________________________ Defendant Concept Construction Corp. (“Concept”), by its attorneys, Duke, Holzman, Photiadis & Gresens LLP, for its answer with defenses, cross- claims and counterclaim to plaintiff’s (“plaintiff” or “Utica Mutual”) complaint, alleges, upon knowledge as to itself and upon information and belief as to all other matters, as follows: 1. Admits the allegations contained in paragraphs 5, 6 and 7. 2. Admits, upon information and belief, the allegations contained in paragraphs 2, 9, 18, 19, 20 and 23. 3. Denies the allegations contained in paragraph 21. 1 of 7 FILED: ERIE COUNTY CLERK 03/18/2021 04:59 PM INDEX NO. 809591/2020 3 NYSCEF DOC. NO. 50 10/20/2020 RECEIVED NYSCEF: 03/18/2021 4. Denies knowledge or information sufficient to form a belief as to the allegations contained in paragraphs 1, 3, 4, 8, 10, 11, 12, 13, 14, 15, 16 and 24. 5. Neither admits nor denies the allegations contained in paragraph 17, but refers to the documents and things specified therein for their exact terms, legal force and effect. If a court should disagree with the foregoing response, then the allegations are denied and the plaintiff is left to its proof. 6. Neither admits nor denies the allegations contained in paragraph 25, upon the ground that said allegations call for legal conclusions to which no response is required. If a court should disagree with the foregoing response, then the allegations are denied and the plaintiff is left to its proof. 7. Denies all allegations not previously answered. FIRST DEFENSE 8. Under date of April 9, 2019, Concept entered into a written contract with the Springville-Griffith Institute Central School District (“School District”) for a project known as Springville-Griffith Institute Central School District, Capital Project – PTECH Academy, Additions and Alterations Work: SED No. 14-11-01-06-0-006-001 – Springville P Tech Academy. The contract 2 of 7 FILED: ERIE COUNTY CLERK 03/18/2021 04:59 PM INDEX NO. 809591/2020 NYSCEF DOC. NO. 3 50 RECEIVED NYSCEF: 10/20/2020 03/18/2021 documents that were included are AIA Document A132-2009 Standard Form of Agreement Between Owner and Contractor, Construction Manager as Adviser Edition and AIA Document A232 – 2009, General Conditions of the Contract for Construction, Construction Manager as Adviser Edition (“General Conditions”). Copies of the aforesaid contract documents are collectively annexed as Exhibit A. 9. Section 11.3.7 of the General Conditions reads, in part, as follows: “§ 11.3.7 Waivers of Subrogation. The Owner and Contractor waive all rights against (1) each other and any of their respective subcontractors, sub-subcontractors, agents and employees, and (2) the Construction Manager, Construction Manager’s consultants, Architect, Architect’s consultants, separate contractors described in Article 6, if any, and any of their respective subcontractors, sub- subcontractors, agents, and employees, for damages caused by fire or other causes of loss to the extent of proceeds under property insurance obtained pursuant to this Section 11.3 or other property insurance applicable to the Work, except such rights as the Owner and Contractor may have to the proceeds of such insurance held by the Owner”. * * * “A waiver of subrogation is effective as to a person or entity even though that person or entity would otherwise have a duty of indemnification, contractual or otherwise, did not pay the insurance premium directly or indirectly, and whether or not the person or entity has an insurable interest in the property damaged.” 3 of 7 FILED: ERIE COUNTY CLERK 03/18/2021 04:59 PM INDEX NO. 809591/2020 NYSCEF DOC. NO. 3 50 RECEIVED NYSCEF: 10/20/2020 03/18/2021 10. By reason of the foregoing, the plaintiff is precluded from recovering and the claims attempted to be alleged in the complaint should be dismissed in their entirety. SECOND DEFENSE 11. Some or all of the claims attempted to be alleged in the complaint are barred by the doctrine of waiver. THIRD DEFENSE 12. Some or all of the claims attempted to be alleged in the complaint are barred by the doctrine of estoppel. FOURTH DEFENSE 13. Some or all of the claims attempted to be alleged in the complaint are barred by the doctrine of unclean hands. FIFTH DEFENSE 14. Some or all of the claims attempted to be alleged in the complaint are barred by reason of documentary evidence. SIXTH DEFENSE 15. Some or all of the claims attempted to be alleged in the complaint are barred because plaintiff has failed to mitigate any damages that it may claim to have incurred. 4 of 7 FILED: ERIE COUNTY CLERK 03/18/2021 04:59 PM INDEX NO. 809591/2020 NYSCEF DOC. NO. 3 50 RECEIVED NYSCEF: 10/20/2020 03/18/2021 SEVENTH DEFENSE AND CROSS-CLAIMS (against Arric Corp., Guard Contracting Corp. and Stromecki Engineers, P.C.) 16. Concept denies any and all responsibility and liability for the claims attempted to be set forth in the complaint, but if plaintiff recovers a judgment against Concept, then the liability of Concept will have been brought about or caused by the contract breaches, performance failures, acts, omissions, delays and inefficiencies of defendants Arric Corp. ("Arric"), Guard Contracting Corp. ("Guard") and/or Stromecki Engineers, P.C. ("Stromecki") and Concept shall be entitled to full or partial indemnification from said defendants, jointly and severally, together with judgment against said defendants, jointly and severally, for all costs, expenses, disbursements and attorneys’ fees incurred in the defense of this action, plus appropriate interest. COUNTERCLAIM 17. Concept realleges the preceding paragraphs with the same force and effect as though set forth again in full. 18. The General Conditions of the contract between Concept and the School District contain a clear an unequivocal waiver of subrogation which is binding on the School District and on Utica Mutual as the School District’s subrogee. The waivers of subrogation contained in §11.3.7 bar, preclude and estop the claims attempted to be asserted in the complaint. 5 of 7 FILED: ERIE COUNTY CLERK 03/18/2021 04:59 PM INDEX NO. 809591/2020 3 NYSCEF DOC. NO. 50 10/20/2020 RECEIVED NYSCEF: 03/18/2021 19. By reason of the foregoing, the plaintiff’s claims are frivolous within meaning of §130-1.1 of the Rules of the Chief Administrator of the Courts (“Rules”). Therefore, if the plaintiff continues to pursue this frivolous action, Concept is entitled to an award of costs and/or sanctions pursuant to §130-1.2 of the Rules. WHEREFORE, Concept demands judgment as follows: a. Dismissing the complaint in its entirety, on the merits and with prejudice; and b. Awarding costs and sanctions in the form of Concept’s legal fees to dismiss this frivolous lawsuit pursuant to Part 130 of the Rules; and c. In the event plaintiff recovers a judgment against Concept, judgment against Arric, Guard and/or Stromecki for full or partial indemnification from said defendants, jointly and severally, together with judgment against said defendants, jointly and severally, for all costs, expenses, disbursements and attorneys’ fees incurred in the defense of this action, plus appropriate interest; and d. Directing such other and further relief as the Court finds just and proper, together with the costs and disbursements of this action. 6 of 7 FILED: ERIE COUNTY CLERK 03/18/2021 04:59 PM INDEX NO. 809591/2020 NYSCEF DOC. NO. 3 50 RECEIVED NYSCEF: 10/20/2020 03/18/2021 Dated: October 20, 2020 Buffalo, New York DUKE, HOLZMAN, PHOTIADIS & GRESENS LLP Attorneys for Defendant Concept Construction Corp. s/James W. Gresens By ______________________________________ James W. Gresens jwgresens@dhpglaw.com 701 Seneca Street, Suite 750 Buffalo, New York 14210 (716) 855-1111 TO: Jerry Marti, Esq. MURA & STORM, PLLC Attorneys for Plaintiff Utica National Insurance Company of Ohio As Subrogee of Springville-Griffith Institute Central School District 930 Rand Building 14 Lafayette Square Buffalo, New York 14203 (716) 855-2800 Jerry.marti@muralaw.com G:\L\Concept\Springville-Griffith (5008.2001)\Pl\Gen\ans102020.docx 7 of 7