Preview
FILED: ERIE COUNTY CLERK 03/24/2021 04:49 PM INDEX NO. 809591/2020
NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 03/24/2021
STATE OF NEW YORK
SUPREME COURT : COUNTY OF ERIE
UTICA NATIONAL INSURANCE COMPANY OF
OHIO AS SUBROGEE OF SPRINGVILLE-GRIFFITH
INSTITUTE CENTRAL SCHOOL DISTRICT,
CONCEPT CONSTRUCTION
Plaintiff, CORP.'S STATEMENT OF
MATERIAL FACTS
v.
CONCEPT CONSTRUCTION CORP., Index No.: 809591/2020
ARRIC CORP.,
GUARD CONTRACTING CORP., and
STROMECKI ENGINEERS, P.C., Hon. Emilio Colaiacovo, J.S.C.
Defendants.
Submitted herewith in accordance with Section 202.8-g of the Uniform Civil Rules for
the Supreme Court and the County Court is the following Statement of Material Facts:
1. This action involves owner Springville-Griffith Institute Central School District's
("School project known as "Springville-Griffith Institute Central School District -
District")
Capital Project - PTECH SED No. located at 307 Newman
Academy", 14-11-01-06-0-006-001,
Street, Springville, New York (the "Project").
2. This lawsuit is a subrogation action commenced by Utica National to recover
alleged damages it claims to have paid its insured, the School District, arising out of an incident
which occurred on or about July 4, 2019, wherein a portion of a building collapsed while
undergoing work in connection with the Project (the "Incident").
3. The School District entered into a written contract with Concept, dated April 9,
2019, wherein Concept agreed to perform certain general construction work for the Project.
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FILED: ERIE COUNTY CLERK 03/24/2021 04:49 PM INDEX NO. 809591/2020
NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 03/24/2021
4. The contract documents included: AIA Document Al32-2009 Standard Form of
Agreemeñt between Owner and Contractor, Construction Manager as Adviser Edition (the
"Contract") and AIA Document A232-2009 General Conditions of the Contract for Construction,
Construction Manager as Adviser Edition ("General Conditions") (collectively, the "Contract
Documents").
BONDS,"
5. Section 11.3.7 of the General Conditions, "INSURANCE AND
reads, in relevant part, as follows:
§11.3.7 Waivers of Subrogation. The Owner and Contractor waive all
rights against each other and of their respective sub-
(1) any subcontractors,
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.
6. Concept entered into a Subcontractor Agreement with defendant Arric Corp.
("Arric"), dated May 6, 2019, whereby Concept subcontracted certain portions of its work to Arric.
7. Arric entered into a sub-subcontract (AIA Document A401-1997 Standard Form
of Agreement between Contractor and Subcontractor) with defendant Guard Contracting Corp.
("Guard"), dated April 25, 2019, whereby Arric, in turn, sub-subcontracted certain portions of its
work to Guard.
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8. Guard retained Stromecki Engineers, P.C. to perform certain engiñêêriñg work in
connection with Concept's work on the Project.
Dated: Buffalo, New York
March 24, 2021
DUKE, HOLZMAN, PHOTIADIS & GRESENS LLP
Attorneys for Defendant
Concept Construction Corp.
By
Elizabeth A. Kraengel
ekraengel@dhpglaw.com
701 Seneca Street, Suite 750
Buffalo, New York 14210
(716) 855-1111
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FILED: ERIE COUNTY CLERK 03/24/2021 04:49 PM INDEX NO. 809591/2020 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 03/24/2021 STATE OF NEW YORK SUPREME COURT : COUNTY OF ERIE UTICA NATIONAL INSURANCE COMPANY OF OHIO AS SUBROGEE OF SPRINGVILLE-GRIFFITH INSTITUTE CENTRAL SCHOOL DISTRICT, CONCEPT CONSTRUCTION Plaintiff, CORP.'S STATEMENT OF MATERIAL FACTS v. CONCEPT CONSTRUCTION CORP., Index No.: 809591/2020 ARRIC CORP., GUARD CONTRACTING CORP., and STROMECKI ENGINEERS, P.C., Hon. Emilio Colaiacovo, J.S.C. Defendants. Submitted herewith in accordance with Section 202.8-g of the Uniform Civil Rules for the Supreme Court and the County Court is the following Statement of Material Facts: 1. This action involves owner Springville-Griffith Institute Central School District's ("School project known as "Springville-Griffith Institute Central School District - District") Capital Project - PTECH SED No. located at 307 Newman Academy", 14-11-01-06-0-006-001, Street, Springville, New York (the "Project"). 2. This lawsuit is a subrogation action commenced by Utica National to recover alleged damages it claims to have paid its insured, the School District, arising out of an incident which occurred on or about July 4, 2019, wherein a portion of a building collapsed while undergoing work in connection with the Project (the "Incident"). 3. The School District entered into a written contract with Concept, dated April 9, 2019, wherein Concept agreed to perform certain general construction work for the Project. 1 of 3 FILED: ERIE COUNTY CLERK 03/24/2021 04:49 PM INDEX NO. 809591/2020 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 03/24/2021 4. The contract documents included: AIA Document Al32-2009 Standard Form of Agreemeñt between Owner and Contractor, Construction Manager as Adviser Edition (the "Contract") and AIA Document A232-2009 General Conditions of the Contract for Construction, Construction Manager as Adviser Edition ("General Conditions") (collectively, the "Contract Documents"). BONDS," 5. Section 11.3.7 of the General Conditions, "INSURANCE AND reads, in relevant part, as follows: §11.3.7 Waivers of Subrogation. The Owner and Contractor waive all rights against each other and of their respective sub- (1) any subcontractors, 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. 6. Concept entered into a Subcontractor Agreement with defendant Arric Corp. ("Arric"), dated May 6, 2019, whereby Concept subcontracted certain portions of its work to Arric. 7. Arric entered into a sub-subcontract (AIA Document A401-1997 Standard Form of Agreement between Contractor and Subcontractor) with defendant Guard Contracting Corp. ("Guard"), dated April 25, 2019, whereby Arric, in turn, sub-subcontracted certain portions of its work to Guard. 2 2 of 3 FILED: ERIE COUNTY CLERK 03/24/2021 04:49 PM INDEX NO. 809591/2020 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 03/24/2021 8. Guard retained Stromecki Engineers, P.C. to perform certain engiñêêriñg work in connection with Concept's work on the Project. Dated: Buffalo, New York March 24, 2021 DUKE, HOLZMAN, PHOTIADIS & GRESENS LLP Attorneys for Defendant Concept Construction Corp. By Elizabeth A. Kraengel ekraengel@dhpglaw.com 701 Seneca Street, Suite 750 Buffalo, New York 14210 (716) 855-1111 3 3 of 3