Preview
FILED: ERIE COUNTY CLERK 02/03/2024 07:44 PM INDEX NO. 801783/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/03/2024
STATE OF NEW YORK
SUPREME COURT : COUNTY OF ERIE
_____________________________________
JEREMIAH J. OLIVER
2074 Clinton Street
Buffalo, New York 14206,
Plaintiff
SUMMONS
-vs-
KING TIRE INC
1525 William Street
Buffalo, New York 14206,
JOHN DOE TIRE STORE
(the name John Doe Tire Store being fictitious, as the true
name and identity of said Defendant is presently unknown
to the Plaintiff. Said Defendant being the tire store that
installed tires on Plaintiff’s vehicle prior to the happening
of the incident alleged in the Plaintiff’s Complaint, in the
event that Defendant, KING TIRE INC did not do so),
Defendants
_____________________________________
TO THE ABOVE-NAMED DEFENDANTS:
YOU ARE HEREBY SUMMONED and required to serve upon the Plaintiff’s
attorneys, at their address stated below, an Answer to the attached Complaint.
If this Summons was personally served upon you in the State of New York, the
Answer must be served within twenty (20) days after such service of the Summons,
excluding the date of service. If the Summons was not personally delivered to you within
the State of New York, the Answer must be served within thirty (30) days after service of
the Summons is complete as provided by law.
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If you do not serve an Answer to the attached Complaint within the applicable
time limitation stated above, a judgment will be entered against you, by default, for the
relief demanded in the Complaint, without further notice to you.
The Plaintiff designates Erie County as the place of trial. The basis of venue is the
residence address of the Plaintiff, which is 2074 Clinton Street, Buffalo, New York
14206.
DATED: Buffalo, New York Yours, etc.
February 2, 2024
By:___________________________________
JOHN J. FROMEN, JR., ESQ.
John J. Fromen, Attorneys at Law, P.C.
Attorneys for Plaintiff
Office & Post Office Address
4367 Harlem Road
Snyder, New York 14226
(716) 855-1222
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STATE OF NEW YORK
SUPREME COURT : COUNTY OF ERIE
_____________________________________
JEREMIAH J. OLIVER
Plaintiff
COMPLAINT
-vs-
KING TIRE INC,
JOHN DOE TIRE STORE
(the name John Doe Tire Store being fictitious, as the true
name and identity of said Defendant is presently unknown
to the Plaintiff. Said Defendant being the tire store that
installed tires on Plaintiff’s vehicle prior to the happening
of the incident alleged in the Plaintiff’s Complaint, in the
event that Defendant, KING TIRE INC did not do so),
Defendants
_____________________________________
The Plaintiff, complaining of the Defendants, by JOHN J. FROMEN,
ATTORNEYS AT LAW, P.C., his attorneys, alleges:
FIRST: That at all times hereinafter mentioned the Plaintiff was and still is a
resident of the County of Erie and State of New York.
SECOND: That upon information and belief, and at all times hereinafter
mentioned, the Defendant, KING TIRE INC (hereinafter referred to as “KING TIRE”),
was a domestic corporation organized under and by virtue of the laws of the State of New
York and authorized to do business in the State of New York with offices for the
transaction of business located at 1525 William Street in the City of Buffalo, County of
Erie and State of New York.
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THIRD: That upon information and belief, and at all times hereinafter mentioned,
the Defendant, JOHN DOE TIRE STORE (hereinafter referred to as “JD TIRE”), was a
domestic corporation organized under and by virtue of the laws of the State of New York
and authorized to do business in the State of New York with offices for the transaction of
business located at 1525 William Street in the City of Buffalo, County of Erie and State
of New York.
FOURTH: That upon information and belief, at all times hereinafter mentioned,
and in the event the Defendant, JD TIRE, was not conducting business as a domestic
corporate entity, then in the alternative, said Defendant was a foreign corporation
authorized to do business in the State of New York with offices for the transaction of
business located at 1525 William Street in the City of Buffalo, County of Erie and State
of New York.
FIFTH: That upon information and belief, and at all times hereinafter mentioned,
and in the event the Defendant, JD TIRE, was neither conducting business as a domestic
or foreign corporate entity, then in the alternative, said Defendant was a domestic or
foreign partnership or limited partnership authorized to do business in the State of New
York with offices for the transaction of business located at 1525 William Street in the
City of Buffalo, County of Erie and State of New York.
SIXTH: That upon information and belief, at all times hereinafter mentioned, and
in the event the Defendant, JD TIRE, was neither conducting business as a partnership or
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corporate entity, then in the alternative, said Defendant was conducting business under a
certain assumed name with offices for the transaction of business located at 1525 William
Street in the City of Buffalo, County of Erie and State of New York.
SEVENTH: That upon information and belief, at all times hereinafter mentioned,
and in the event the Defendant, JD TIRE, was neither conducting business as a corporate
entity, under an assumed name, or as partnership, then in the alternative, said Defendant
was a domestic or foreign limited liability company authorized to do business in the State
of New York.
EIGHTH: That upon information and belief, and at all times hereinafter
mentioned, the Defendant, JD TIRE, its agents, servants and/or employees, appointees or
designees, did commit a tortious act within the State of New York causing injury to the
Plaintiff as hereinafter described.
NINTH: That upon information and belief, and at all times hereinafter mentioned,
the Defendant, JD TIRE, did transact business within the State of New York.
TENTH: That upon information and belief, and at all times hereinafter
mentioned, the Defendant, JD TIRE, expected or should have reasonably expected its
acts to have consequences in the State of New York and at that time said Defendant did
derive substantial revenue from interstate commerce.
ELEVENTH: That upon information and belief, and at all times hereinafter
mentioned, the Defendant, JD TIRE, did own, use, possess, lease or otherwise contract
for the use of real property and its appurtenances situate in the State of New York.
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TWELFTH: That upon information and belief, and at all times hereinafter
mentioned, the Defendant, KING TIRE, was the owner and operator of a certain retail
tire shop and garage more commonly known as “King Tire” and located at 1525 William
Street in the City of Buffalo, County of Erie and State of New York.
THIRTEENTH: That upon information and belief, at all times hereinafter
mentioned, and in the event that the Defendant, KING TIRE, was not the owner and/or
operator of the aforementioned retail tire shop and garage, then in the alternative, the
Defendant, JD TIRE, was the owner and operator of the aforesaid retail tire shop and
garage more commonly known as “King Tire” and located at 1525 William Street in the
City of Buffalo, County of Erie and State of New York.
FOURTEENTH: That at all times hereinafter mentioned, Amyco Construction,
LLC was the titled and registered owner of a certain white Chevrolet Silverado 3500
pickup truck bearing New York State registration plate number, and the Plaintiff was and
still is the owner and President of said company.
FIFTEENTH: That on or about the 16th day of January, 2021 the Plaintiff
brought the aforesaid pickup truck to the King Tire store located at 1525 William Street
in the City of Buffalo, County of Erie and State of New York. At that time the Plaintiff
did enter into a contract with the Defendant, KING TIRE or the Defendant, JD TIRE,
their agents, servants, employees, appointees, designees, independent contractors,
technicians and/or mechanics, in which the Defendant agreed to sell, and the Plaintiff
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agreed to buy, certain tires from the Defendant, KING TIRE or the Defendant, JD TIRE,
their agents, servants, employees, appointees, designees, independent contractors,
technicians and/or mechanics, and that said tires were to be safely and adequately
mounted and installed on the aforesaid pickup truck in a proper and workmanlike
manner.
SIXTEENTH: That upon information and belief, and on or about the 16th day of
January, 2021, the Defendant, KING TIRE and/or the Defendant, JD TIRE, their agents,
servants, employees, appointees, designees, independent contractors, technicians and/or
mechanics, did mount and install the aforementioned tires on the subject white Chevrolet
Silverado 3500 pickup truck, and did expressly and/or impliedly represent and warrant to
the Plaintiff that said tires had been mounted and installed in a safe, proper and
workmanlike manner, that all lug nuts had been torqued to proper specification, and that
the wheels and tires were safe, fit and suitable for their intended use and purpose, i.e.
travel on the streets, roads and highways of the State of New York and elsewhere.
SEVENTEENTH: That on or about the 4th day of February, 2021 at
approximately 12:00 pm, the Plaintiff was operating the aforementioned pickup truck in a
westerly direction on the New York State Thruway (Interstate 90) at or near Exit 57
(Eden/Angola exit).
EIGHTEENTH: That at the time and place aforementioned, the subject white
Chevrolet Silverado 3500 pickup truck being operated by the Plaintiff suddenly,
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unexpectedly and without warning began to shake, the rear wheels of the pickup truck
fell off, and the rear of the pickup truck dropped violently, causing the Plaintiff to lose
control, come into collision with, and strike a guardrail on the side of the Thruway
causing injuries to the Plaintiff as hereinafter set forth.
NINETEENTH: That if it be determined that all or any part of the within action
is subject to the provisions of Section 5104(a) of the Insurance Law of the State of New
York, then and in that event, the Plaintiff has sustained a serious injury as defined in
Section 5102(d) of the Insurance Law of the State of New York and has sustained
economic loss greater than basic economic loss, as defined in Section 5102(a) of the
Insurance Law of the State of New York.
TWENTIETH: That the limitations on joint and several liability established
under Article 16 of the Civil Practice Laws and Rules of the State of New York do not
apply herein on the grounds that one or more of the exceptions enumerated under CPLR
Section 1602 are applicable to the Plaintiff’s claims in the within action.
AS AND FOR A FIRST, SEPARATE AND DISTINCT
CAUSE OF ACTION AGAINST THE DEFENDANTS
HEREIN, THE PLAINTIFF ALLEGES:
TWENTY-FIRST: Repeats and realleges each and every allegation contained in
paragraphs numbered “FIRST” through “TWENTIETH” inclusive, of the Plaintiff’s
Complaint herein as though fully set forth at length herein.
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TWENTY-SECOND: That upon information and belief, the Defendant, KING
TIRE and/or the Defendant, JD TIRE, their agents, servants, employees, appointees,
designees, independent contractors, technicians and/or mechanics, were negligent,
careless and reckless in the mounting, installation and inspection of the aforesaid wheels
and tires; in failing to confirm that the aforesaid wheels and tires had been mounted and
installed in a safe, proper and workmanlike manner; in failing to confirm that all lug nuts
had been torqued to proper specification before returning the subject pickup truck to the
Plaintiff; in failing to confirm that the aforesaid wheels and tires as installed were safe, fit
and suitable for travel on the streets, roads and highways of the State of New York and
elsewhere; and were otherwise negligent, reckless and careless in said incident and the
resulting injuries to the Plaintiff as hereinafter alleged.
TWENTY-THIRD: That as a result of the negligence, recklessness and
carelessness of the Defendants, the Plaintiff was injured externally, internally and
permanently in and about the head, body, limbs and nervous system so that he became
and will continue to be disabled and will continue to suffer pain, discomfort,
disfigurement and distress. That by reason of the aforesaid injuries said Plaintiff required
the services of physicians, surgeons, nurses, hospitals, therapy, manipulations and
medicines and will continue to incur such expenses in the future; that as a result of the
aforesaid injuries and resulting permanent disabilities, said Plaintiff has been
incapacitated from his educational pursuits, profession and/or employment and will
continue to be incapacitated from his educational pursuits, profession and/or employment
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in the future and as a result of the aforesaid injuries and permanent disabilities the future
earning capacity, profession, livelihood and social and personal endeavors, hobbies and
activities of said Plaintiff will be partially and/or permanently impaired; and as a result of
all of the aforesaid the Plaintiff has otherwise been damaged in a sum which exceeds the
jurisdictional limits of all lower Courts which would otherwise have jurisdiction and as
may be awarded by the trier of facts herein.
AS AND FOR A SECOND, SEPARATE AND DISTINCT
CAUSE OF ACTION AGAINST THE DEFENDANTS
HEREIN, THE PLAINTIFF ALLEGES:
TWENTY-FOURTH: Repeats and realleges each and every allegation contained
in paragraphs numbered “FIRST” through “TWENTY-THIRD” inclusive, of the
Plaintiff’s Complaint herein as though fully set forth at length herein.
TWENTY-FIFTH: That upon information and belief, and prior to the happening
of the within incident, the Defendant, KING TIRE and/or the Defendant, JD TIRE, their
agents, servants, employees, appointees, designees, independent contractors, technicians
and/or mechanics, knew or should have known in the exercise of ordinary care that the
aforementioned tires as mounted and installed were defective, dangerous, unsafe and
unfit for the use they were intended; contained insufficient warnings and instructions; and
constituted an unreasonably dangerous product as mounted, installed, designed, tested,
manufactured, assembled, inspected, marketed, distributed, advertised, sold and
consumed; and that the likelihood and gravity of the harm of the aforesaid tires as
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mounted and installed with untorqued and/or insufficiently torqued lug nuts far
outweighed the utility of said product as installed.
TWENTY-SIXTH: That by reason of the foregoing, the Defendants, their agents,
servants, employees, appointees, designees, independent contractors, technicians and/or
mechanics, are strictly liable in tort for the aforementioned injuries sustained by the
Plaintiff pursuant to the doctrine of Strict Products Liability. The aforementioned tires
were defective, among other things, in the manner in which they were mounted, installed,
inspected, torqued and by having inadequate warnings of an inherent danger, thus making
the product not reasonably safe, and said defects existed at the time the product left the
Defendant’s possession or control. The product defect was a substantial factor in bringing
about the Plaintiff’s injury. At the time of the occurrence, the product was being used by
the Plaintiff in a reasonably foreseeable manner.
TWENTY-SEVENTH: That as a result of the foregoing, the Plaintiff was injured
externally, internally and permanently in and about the head, body, limbs and nervous
system so that he became and will continue to be disabled and will continue to suffer
pain, discomfort, disfigurement and distress. That by reason of the aforesaid injuries said
Plaintiff required the services of physicians, surgeons, nurses, hospitals, therapy,
manipulations and medicines and will continue to incur such expenses in the future; that
as a result of the aforesaid injuries and resulting permanent disabilities, said Plaintiff has
been incapacitated from his educational pursuits, profession and/or employment and will
continue to be incapacitated from his educational pursuits, profession and/or employment
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in the future and as a result of the aforesaid injuries and permanent disabilities the future
earning capacity, profession, livelihood and social and personal endeavors, hobbies and
activities of said Plaintiff will be partially and/or permanently impaired; and as a result of
all of the aforesaid the Plaintiff has otherwise been damaged in a sum which exceeds the
jurisdictional limits of all lower Courts which would otherwise have jurisdiction and as
may be awarded by the trier of facts herein.
AS AND FOR A THIRD, SEPARATE AND DISTINCT
CAUSE OF ACTION AGAINST THE DEFENDANTS
HEREIN, THE PLAINTIFF ALLEGES:
TWENTY-EIGHTH: Repeats and realleges each and every allegation contained
in paragraphs numbered “FIRST” through “TWENTY-SEVENTH” inclusive, of the
Plaintiff’s Complaint herein as though fully set forth at length herein.
TWENTY-NINTH: That upon information and belief, and as part of said offer
and contract between the parties, the Defendant, KING TIRE and/or the Defendant, JD
TIRE, their agents, servants, employees, appointees, designees, independent contractors,
technicians and/or mechanics, did expressly or impliedly warrant and represent to said
Plaintiff that said tires would be mounted and installed in a safe, proper, workmanlike
and non-negligent manner, that all lug nuts would be torqued to proper specification, and
that the wheels and tires would be reasonably safe, fit and suitable for their intended use
and purpose, i.e. travel on the streets, roads and highways of the State of New York and
elsewhere.
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THIRTIETH: That based upon the aforesaid offer, warranties and
representations, the Plaintiff did enter into the aforesaid contract with the Defendant,
KING TIRE and/or the Defendant, JD TIRE, their agents, servants, employees,
appointees, designees, independent contractors, technicians and/or mechanics, and in
reliance upon the Defendant’s express and/or implied representations and warranties as
aforementioned, the Plaintiff did subsequently operate the aforesaid pickup truck on the
New York State Thruway on the date and time aforementioned, and as a result of the
negligent conduct and actions of said Defendants, their agents, servants, employees,
appointees, designees, independent contractors, technicians and/or mechanics as set forth
above, the wheels and tires of the subject white Chevrolet Silverado 3500 pickup truck
being operated by the Plaintiff fell off, thereby breaching the aforementioned contract,
warranties and representations made with respect thereto, express and/or implied.
THIRTY-FIRST: That as a result of the breach of contract, warranties and
representations made with respect thereto, express and/or implied, by the Defendant,
KING TIRE and/or the Defendant, JD TIRE, their agents, servants, employees,
appointees, designees, independent contractors, technicians and/or mechanics, the
Plaintiff was injured externally, internally and permanently in and about the head, body,
limbs and nervous system so that he became and will continue to be disabled and will
continue to suffer pain, discomfort, disfigurement and distress. That by reason of the
aforesaid injuries said Plaintiff required the services of physicians, surgeons, nurses,
hospitals, therapy, manipulations and medicines and will continue to incur such expenses
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in the future; that as a result of the aforesaid injuries and resulting permanent disabilities,
said Plaintiff has been incapacitated from his educational pursuits, profession and/or
employment and will continue to be incapacitated from his educational pursuits,
profession and/or employment in the future and as a result of the aforesaid injuries and
permanent disabilities the future earning capacity, profession, livelihood and social and
personal endeavors, hobbies and activities of said Plaintiff will be partially and/or
permanently impaired; and as a result of all of the aforesaid the Plaintiff has otherwise
been damaged in a sum which exceeds the jurisdictional limits of all lower Courts which
would otherwise have jurisdiction and as may be awarded by the trier of facts herein.
WHEREFORE, Plaintiff demands judgment against the Defendants for a sum
which exceeds the jurisdictional limits of all lower courts which would otherwise have
jurisdiction and as may be awarded by the trier of facts herein on the First Cause of
Action; for a sum which exceeds the jurisdictional limits of all lower courts which would
otherwise have jurisdiction and as may be awarded by the trier of facts herein on the
Second Cause of Action; for a sum which exceeds the jurisdictional limits of all lower
courts which would otherwise have jurisdiction and as may be awarded by the trier of
facts herein on the Third Cause of Action, together with the costs and disbursements of
this action and for such other and further relief as to this Court may seem just and proper.
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DATED: Buffalo, New York
February 2, 2024
By:___________________________________
JOHN J. FROMEN, JR., ESQ.
John J. Fromen, Attorneys at Law, P.C.
Attorneys for Plaintiff
Office & Post Office Address
4367 Harlem Road
Snyder, New York 14226
(716) 855-1222
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STATE OF NEW YORK
SUPREME COURT : COUNTY OF ERIE
_____________________________________
JEREMIAH J. OLIVER,
Plaintiff
-vs-
KING TIRE INC,
JOHN DOE TIRE STORE
(the name John Doe Tire Store being fictitious, as the true
name and identity of said Defendant is presently unknown
to the Plaintiff. Said Defendant being the tire store that
installed tires on Plaintiff’s vehicle prior to the happening
of the incident alleged in the Plaintiff’s Complaint, in the
event that Defendant, KING TIRE INC did not do so),
Defendants
_____________________________________
NOTICE OF ELECTRONIC FILING
(Mandatory Case)
(Uniform Rule § 202.5-bb)
You have received this Notice because:
1) The Plaintiff/Petitioner, whose name is listed above, has filed this case using the New
York State Courts E-filing system (“NYSCEF”), and
2) You are a Defendant/Respondent (a party) in this case.
• If you are represented by an attorney:
Give this Notice to your attorney. (Attorneys: see “Information for Attorneys” pg. 2).
• If you are not represented by an attorney:
You will be served with all documents in paper and you must serve and file your
documents in paper, unless you choose to participate in e-filing.
If you choose to participate in e-filing, you must have access to a computer and a
scanner or other device to convert documents into electronic format, a connection to the
internet, and an e-mail address to receive service of documents.
The benefits of participating in e-filing include:
• serving and filing your documents electronically
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• free access to view and print your e-filed documents
• limiting your number of trips to the courthouse
• paying any court fees on-line (credit card needed)
To register for e-filing or for more information about how e-filing works:
• visit: www.nycourts.gov/efile-unrepresented or
• contact the Clerk’s Office or Help Center at the court where the case was filed. Court
contact information can be found at www.nycourts.gov
To find legal information to help you represent yourself visit www.nycourthelp.gov
Information for Attorneys
(E-filing is Mandatory for Attorneys)
An attorney representing a party who is served with this notice must either:
1) immediately record his or her representation within the e-filed matter on the
NYSCEF site www.nycourts.gov/efile; or
2) file the Notice of Opt-Out form with the clerk of the court where this action is pending
and serve on all parties. Exemptions from mandatory e-filing are limited to attorneys who
certify in good faith that they lack the computer hardware and/or scanner and/or internet
connection or that they lack (along with all employees subject to their direction) the
knowledge to operate such equipment. [Section 202.5-bb(e)]
For additional information about electronic filing and to create a NYSCEF account, visit the
NYSCEF website at www.nycourts.gov/e-file or contact the NYSCEF Resource Center (phone:
646-386-3033; email: nyscef@nycourts.gov).
Dated: February 2, 2024
(Signature) 716-855-1222 (Phone)
John J. Fromen, Jr. (Name) 716-855-1239 (Fax)
John J. Fromen, Attorneys at Law, P.C. (Firm) jjfjr@fromenlaw.com (E-mail)
4367 Harlem Road (Address)
Snyder, NY 14226
Attorney(s) for Plaintiff
TO: KING TIRE INC,
JOHN DOE TIRE STORE
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Preview
FILED: ERIE COUNTY CLERK 02/03/2024 07:44 PM INDEX NO. 801783/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/03/2024 STATE OF NEW YORK SUPREME COURT : COUNTY OF ERIE _____________________________________ JEREMIAH J. OLIVER 2074 Clinton Street Buffalo, New York 14206, Plaintiff SUMMONS -vs- KING TIRE INC 1525 William Street Buffalo, New York 14206, JOHN DOE TIRE STORE (the name John Doe Tire Store being fictitious, as the true name and identity of said Defendant is presently unknown to the Plaintiff. Said Defendant being the tire store that installed tires on Plaintiff’s vehicle prior to the happening of the incident alleged in the Plaintiff’s Complaint, in the event that Defendant, KING TIRE INC did not do so), Defendants _____________________________________ TO THE ABOVE-NAMED DEFENDANTS: YOU ARE HEREBY SUMMONED and required to serve upon the Plaintiff’s attorneys, at their address stated below, an Answer to the attached Complaint. If this Summons was personally served upon you in the State of New York, the Answer must be served within twenty (20) days after such service of the Summons, excluding the date of service. If the Summons was not personally delivered to you within the State of New York, the Answer must be served within thirty (30) days after service of the Summons is complete as provided by law. 1 of 17 FILED: ERIE COUNTY CLERK 02/03/2024 07:44 PM INDEX NO. 801783/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/03/2024 If you do not serve an Answer to the attached Complaint within the applicable time limitation stated above, a judgment will be entered against you, by default, for the relief demanded in the Complaint, without further notice to you. The Plaintiff designates Erie County as the place of trial. The basis of venue is the residence address of the Plaintiff, which is 2074 Clinton Street, Buffalo, New York 14206. DATED: Buffalo, New York Yours, etc. February 2, 2024 By:___________________________________ JOHN J. FROMEN, JR., ESQ. John J. Fromen, Attorneys at Law, P.C. Attorneys for Plaintiff Office & Post Office Address 4367 Harlem Road Snyder, New York 14226 (716) 855-1222 -2- 2 of 17 FILED: ERIE COUNTY CLERK 02/03/2024 07:44 PM INDEX NO. 801783/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/03/2024 STATE OF NEW YORK SUPREME COURT : COUNTY OF ERIE _____________________________________ JEREMIAH J. OLIVER Plaintiff COMPLAINT -vs- KING TIRE INC, JOHN DOE TIRE STORE (the name John Doe Tire Store being fictitious, as the true name and identity of said Defendant is presently unknown to the Plaintiff. Said Defendant being the tire store that installed tires on Plaintiff’s vehicle prior to the happening of the incident alleged in the Plaintiff’s Complaint, in the event that Defendant, KING TIRE INC did not do so), Defendants _____________________________________ The Plaintiff, complaining of the Defendants, by JOHN J. FROMEN, ATTORNEYS AT LAW, P.C., his attorneys, alleges: FIRST: That at all times hereinafter mentioned the Plaintiff was and still is a resident of the County of Erie and State of New York. SECOND: That upon information and belief, and at all times hereinafter mentioned, the Defendant, KING TIRE INC (hereinafter referred to as “KING TIRE”), was a domestic corporation organized under and by virtue of the laws of the State of New York and authorized to do business in the State of New York with offices for the transaction of business located at 1525 William Street in the City of Buffalo, County of Erie and State of New York. 3 of 17 FILED: ERIE COUNTY CLERK 02/03/2024 07:44 PM INDEX NO. 801783/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/03/2024 THIRD: That upon information and belief, and at all times hereinafter mentioned, the Defendant, JOHN DOE TIRE STORE (hereinafter referred to as “JD TIRE”), was a domestic corporation organized under and by virtue of the laws of the State of New York and authorized to do business in the State of New York with offices for the transaction of business located at 1525 William Street in the City of Buffalo, County of Erie and State of New York. FOURTH: That upon information and belief, at all times hereinafter mentioned, and in the event the Defendant, JD TIRE, was not conducting business as a domestic corporate entity, then in the alternative, said Defendant was a foreign corporation authorized to do business in the State of New York with offices for the transaction of business located at 1525 William Street in the City of Buffalo, County of Erie and State of New York. FIFTH: That upon information and belief, and at all times hereinafter mentioned, and in the event the Defendant, JD TIRE, was neither conducting business as a domestic or foreign corporate entity, then in the alternative, said Defendant was a domestic or foreign partnership or limited partnership authorized to do business in the State of New York with offices for the transaction of business located at 1525 William Street in the City of Buffalo, County of Erie and State of New York. SIXTH: That upon information and belief, at all times hereinafter mentioned, and in the event the Defendant, JD TIRE, was neither conducting business as a partnership or -2- 4 of 17 FILED: ERIE COUNTY CLERK 02/03/2024 07:44 PM INDEX NO. 801783/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/03/2024 corporate entity, then in the alternative, said Defendant was conducting business under a certain assumed name with offices for the transaction of business located at 1525 William Street in the City of Buffalo, County of Erie and State of New York. SEVENTH: That upon information and belief, at all times hereinafter mentioned, and in the event the Defendant, JD TIRE, was neither conducting business as a corporate entity, under an assumed name, or as partnership, then in the alternative, said Defendant was a domestic or foreign limited liability company authorized to do business in the State of New York. EIGHTH: That upon information and belief, and at all times hereinafter mentioned, the Defendant, JD TIRE, its agents, servants and/or employees, appointees or designees, did commit a tortious act within the State of New York causing injury to the Plaintiff as hereinafter described. NINTH: That upon information and belief, and at all times hereinafter mentioned, the Defendant, JD TIRE, did transact business within the State of New York. TENTH: That upon information and belief, and at all times hereinafter mentioned, the Defendant, JD TIRE, expected or should have reasonably expected its acts to have consequences in the State of New York and at that time said Defendant did derive substantial revenue from interstate commerce. ELEVENTH: That upon information and belief, and at all times hereinafter mentioned, the Defendant, JD TIRE, did own, use, possess, lease or otherwise contract for the use of real property and its appurtenances situate in the State of New York. -3- 5 of 17 FILED: ERIE COUNTY CLERK 02/03/2024 07:44 PM INDEX NO. 801783/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/03/2024 TWELFTH: That upon information and belief, and at all times hereinafter mentioned, the Defendant, KING TIRE, was the owner and operator of a certain retail tire shop and garage more commonly known as “King Tire” and located at 1525 William Street in the City of Buffalo, County of Erie and State of New York. THIRTEENTH: That upon information and belief, at all times hereinafter mentioned, and in the event that the Defendant, KING TIRE, was not the owner and/or operator of the aforementioned retail tire shop and garage, then in the alternative, the Defendant, JD TIRE, was the owner and operator of the aforesaid retail tire shop and garage more commonly known as “King Tire” and located at 1525 William Street in the City of Buffalo, County of Erie and State of New York. FOURTEENTH: That at all times hereinafter mentioned, Amyco Construction, LLC was the titled and registered owner of a certain white Chevrolet Silverado 3500 pickup truck bearing New York State registration plate number, and the Plaintiff was and still is the owner and President of said company. FIFTEENTH: That on or about the 16th day of January, 2021 the Plaintiff brought the aforesaid pickup truck to the King Tire store located at 1525 William Street in the City of Buffalo, County of Erie and State of New York. At that time the Plaintiff did enter into a contract with the Defendant, KING TIRE or the Defendant, JD TIRE, their agents, servants, employees, appointees, designees, independent contractors, technicians and/or mechanics, in which the Defendant agreed to sell, and the Plaintiff -4- 6 of 17 FILED: ERIE COUNTY CLERK 02/03/2024 07:44 PM INDEX NO. 801783/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/03/2024 agreed to buy, certain tires from the Defendant, KING TIRE or the Defendant, JD TIRE, their agents, servants, employees, appointees, designees, independent contractors, technicians and/or mechanics, and that said tires were to be safely and adequately mounted and installed on the aforesaid pickup truck in a proper and workmanlike manner. SIXTEENTH: That upon information and belief, and on or about the 16th day of January, 2021, the Defendant, KING TIRE and/or the Defendant, JD TIRE, their agents, servants, employees, appointees, designees, independent contractors, technicians and/or mechanics, did mount and install the aforementioned tires on the subject white Chevrolet Silverado 3500 pickup truck, and did expressly and/or impliedly represent and warrant to the Plaintiff that said tires had been mounted and installed in a safe, proper and workmanlike manner, that all lug nuts had been torqued to proper specification, and that the wheels and tires were safe, fit and suitable for their intended use and purpose, i.e. travel on the streets, roads and highways of the State of New York and elsewhere. SEVENTEENTH: That on or about the 4th day of February, 2021 at approximately 12:00 pm, the Plaintiff was operating the aforementioned pickup truck in a westerly direction on the New York State Thruway (Interstate 90) at or near Exit 57 (Eden/Angola exit). EIGHTEENTH: That at the time and place aforementioned, the subject white Chevrolet Silverado 3500 pickup truck being operated by the Plaintiff suddenly, -5- 7 of 17 FILED: ERIE COUNTY CLERK 02/03/2024 07:44 PM INDEX NO. 801783/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/03/2024 unexpectedly and without warning began to shake, the rear wheels of the pickup truck fell off, and the rear of the pickup truck dropped violently, causing the Plaintiff to lose control, come into collision with, and strike a guardrail on the side of the Thruway causing injuries to the Plaintiff as hereinafter set forth. NINETEENTH: That if it be determined that all or any part of the within action is subject to the provisions of Section 5104(a) of the Insurance Law of the State of New York, then and in that event, the Plaintiff has sustained a serious injury as defined in Section 5102(d) of the Insurance Law of the State of New York and has sustained economic loss greater than basic economic loss, as defined in Section 5102(a) of the Insurance Law of the State of New York. TWENTIETH: That the limitations on joint and several liability established under Article 16 of the Civil Practice Laws and Rules of the State of New York do not apply herein on the grounds that one or more of the exceptions enumerated under CPLR Section 1602 are applicable to the Plaintiff’s claims in the within action. AS AND FOR A FIRST, SEPARATE AND DISTINCT CAUSE OF ACTION AGAINST THE DEFENDANTS HEREIN, THE PLAINTIFF ALLEGES: TWENTY-FIRST: Repeats and realleges each and every allegation contained in paragraphs numbered “FIRST” through “TWENTIETH” inclusive, of the Plaintiff’s Complaint herein as though fully set forth at length herein. -6- 8 of 17 FILED: ERIE COUNTY CLERK 02/03/2024 07:44 PM INDEX NO. 801783/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/03/2024 TWENTY-SECOND: That upon information and belief, the Defendant, KING TIRE and/or the Defendant, JD TIRE, their agents, servants, employees, appointees, designees, independent contractors, technicians and/or mechanics, were negligent, careless and reckless in the mounting, installation and inspection of the aforesaid wheels and tires; in failing to confirm that the aforesaid wheels and tires had been mounted and installed in a safe, proper and workmanlike manner; in failing to confirm that all lug nuts had been torqued to proper specification before returning the subject pickup truck to the Plaintiff; in failing to confirm that the aforesaid wheels and tires as installed were safe, fit and suitable for travel on the streets, roads and highways of the State of New York and elsewhere; and were otherwise negligent, reckless and careless in said incident and the resulting injuries to the Plaintiff as hereinafter alleged. TWENTY-THIRD: That as a result of the negligence, recklessness and carelessness of the Defendants, the Plaintiff was injured externally, internally and permanently in and about the head, body, limbs and nervous system so that he became and will continue to be disabled and will continue to suffer pain, discomfort, disfigurement and distress. That by reason of the aforesaid injuries said Plaintiff required the services of physicians, surgeons, nurses, hospitals, therapy, manipulations and medicines and will continue to incur such expenses in the future; that as a result of the aforesaid injuries and resulting permanent disabilities, said Plaintiff has been incapacitated from his educational pursuits, profession and/or employment and will continue to be incapacitated from his educational pursuits, profession and/or employment -7- 9 of 17 FILED: ERIE COUNTY CLERK 02/03/2024 07:44 PM INDEX NO. 801783/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/03/2024 in the future and as a result of the aforesaid injuries and permanent disabilities the future earning capacity, profession, livelihood and social and personal endeavors, hobbies and activities of said Plaintiff will be partially and/or permanently impaired; and as a result of all of the aforesaid the Plaintiff has otherwise been damaged in a sum which exceeds the jurisdictional limits of all lower Courts which would otherwise have jurisdiction and as may be awarded by the trier of facts herein. AS AND FOR A SECOND, SEPARATE AND DISTINCT CAUSE OF ACTION AGAINST THE DEFENDANTS HEREIN, THE PLAINTIFF ALLEGES: TWENTY-FOURTH: Repeats and realleges each and every allegation contained in paragraphs numbered “FIRST” through “TWENTY-THIRD” inclusive, of the Plaintiff’s Complaint herein as though fully set forth at length herein. TWENTY-FIFTH: That upon information and belief, and prior to the happening of the within incident, the Defendant, KING TIRE and/or the Defendant, JD TIRE, their agents, servants, employees, appointees, designees, independent contractors, technicians and/or mechanics, knew or should have known in the exercise of ordinary care that the aforementioned tires as mounted and installed were defective, dangerous, unsafe and unfit for the use they were intended; contained insufficient warnings and instructions; and constituted an unreasonably dangerous product as mounted, installed, designed, tested, manufactured, assembled, inspected, marketed, distributed, advertised, sold and consumed; and that the likelihood and gravity of the harm of the aforesaid tires as -8- 10 of 17 FILED: ERIE COUNTY CLERK 02/03/2024 07:44 PM INDEX NO. 801783/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/03/2024 mounted and installed with untorqued and/or insufficiently torqued lug nuts far outweighed the utility of said product as installed. TWENTY-SIXTH: That by reason of the foregoing, the Defendants, their agents, servants, employees, appointees, designees, independent contractors, technicians and/or mechanics, are strictly liable in tort for the aforementioned injuries sustained by the Plaintiff pursuant to the doctrine of Strict Products Liability. The aforementioned tires were defective, among other things, in the manner in which they were mounted, installed, inspected, torqued and by having inadequate warnings of an inherent danger, thus making the product not reasonably safe, and said defects existed at the time the product left the Defendant’s possession or control. The product defect was a substantial factor in bringing about the Plaintiff’s injury. At the time of the occurrence, the product was being used by the Plaintiff in a reasonably foreseeable manner. TWENTY-SEVENTH: That as a result of the foregoing, the Plaintiff was injured externally, internally and permanently in and about the head, body, limbs and nervous system so that he became and will continue to be disabled and will continue to suffer pain, discomfort, disfigurement and distress. That by reason of the aforesaid injuries said Plaintiff required the services of physicians, surgeons, nurses, hospitals, therapy, manipulations and medicines and will continue to incur such expenses in the future; that as a result of the aforesaid injuries and resulting permanent disabilities, said Plaintiff has been incapacitated from his educational pursuits, profession and/or employment and will continue to be incapacitated from his educational pursuits, profession and/or employment -9- 11 of 17 FILED: ERIE COUNTY CLERK 02/03/2024 07:44 PM INDEX NO. 801783/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/03/2024 in the future and as a result of the aforesaid injuries and permanent disabilities the future earning capacity, profession, livelihood and social and personal endeavors, hobbies and activities of said Plaintiff will be partially and/or permanently impaired; and as a result of all of the aforesaid the Plaintiff has otherwise been damaged in a sum which exceeds the jurisdictional limits of all lower Courts which would otherwise have jurisdiction and as may be awarded by the trier of facts herein. AS AND FOR A THIRD, SEPARATE AND DISTINCT CAUSE OF ACTION AGAINST THE DEFENDANTS HEREIN, THE PLAINTIFF ALLEGES: TWENTY-EIGHTH: Repeats and realleges each and every allegation contained in paragraphs numbered “FIRST” through “TWENTY-SEVENTH” inclusive, of the Plaintiff’s Complaint herein as though fully set forth at length herein. TWENTY-NINTH: That upon information and belief, and as part of said offer and contract between the parties, the Defendant, KING TIRE and/or the Defendant, JD TIRE, their agents, servants, employees, appointees, designees, independent contractors, technicians and/or mechanics, did expressly or impliedly warrant and represent to said Plaintiff that said tires would be mounted and installed in a safe, proper, workmanlike and non-negligent manner, that all lug nuts would be torqued to proper specification, and that the wheels and tires would be reasonably safe, fit and suitable for their intended use and purpose, i.e. travel on the streets, roads and highways of the State of New York and elsewhere. -10- 12 of 17 FILED: ERIE COUNTY CLERK 02/03/2024 07:44 PM INDEX NO. 801783/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/03/2024 THIRTIETH: That based upon the aforesaid offer, warranties and representations, the Plaintiff did enter into the aforesaid contract with the Defendant, KING TIRE and/or the Defendant, JD TIRE, their agents, servants, employees, appointees, designees, independent contractors, technicians and/or mechanics, and in reliance upon the Defendant’s express and/or implied representations and warranties as aforementioned, the Plaintiff did subsequently operate the aforesaid pickup truck on the New York State Thruway on the date and time aforementioned, and as a result of the negligent conduct and actions of said Defendants, their agents, servants, employees, appointees, designees, independent contractors, technicians and/or mechanics as set forth above, the wheels and tires of the subject white Chevrolet Silverado 3500 pickup truck being operated by the Plaintiff fell off, thereby breaching the aforementioned contract, warranties and representations made with respect thereto, express and/or implied. THIRTY-FIRST: That as a result of the breach of contract, warranties and representations made with respect thereto, express and/or implied, by the Defendant, KING TIRE and/or the Defendant, JD TIRE, their agents, servants, employees, appointees, designees, independent contractors, technicians and/or mechanics, the Plaintiff was injured externally, internally and permanently in and about the head, body, limbs and nervous system so that he became and will continue to be disabled and will continue to suffer pain, discomfort, disfigurement and distress. That by reason of the aforesaid injuries said Plaintiff required the services of physicians, surgeons, nurses, hospitals, therapy, manipulations and medicines and will continue to incur such expenses -11- 13 of 17 FILED: ERIE COUNTY CLERK 02/03/2024 07:44 PM INDEX NO. 801783/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/03/2024 in the future; that as a result of the aforesaid injuries and resulting permanent disabilities, said Plaintiff has been incapacitated from his educational pursuits, profession and/or employment and will continue to be incapacitated from his educational pursuits, profession and/or employment in the future and as a result of the aforesaid injuries and permanent disabilities the future earning capacity, profession, livelihood and social and personal endeavors, hobbies and activities of said Plaintiff will be partially and/or permanently impaired; and as a result of all of the aforesaid the Plaintiff has otherwise been damaged in a sum which exceeds the jurisdictional limits of all lower Courts which would otherwise have jurisdiction and as may be awarded by the trier of facts herein. WHEREFORE, Plaintiff demands judgment against the Defendants for a sum which exceeds the jurisdictional limits of all lower courts which would otherwise have jurisdiction and as may be awarded by the trier of facts herein on the First Cause of Action; for a sum which exceeds the jurisdictional limits of all lower courts which would otherwise have jurisdiction and as may be awarded by the trier of facts herein on the Second Cause of Action; for a sum which exceeds the jurisdictional limits of all lower courts which would otherwise have jurisdiction and as may be awarded by the trier of facts herein on the Third Cause of Action, together with the costs and disbursements of this action and for such other and further relief as to this Court may seem just and proper. -12- 14 of 17 FILED: ERIE COUNTY CLERK 02/03/2024 07:44 PM INDEX NO. 801783/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/03/2024 DATED: Buffalo, New York February 2, 2024 By:___________________________________ JOHN J. FROMEN, JR., ESQ. John J. Fromen, Attorneys at Law, P.C. Attorneys for Plaintiff Office & Post Office Address 4367 Harlem Road Snyder, New York 14226 (716) 855-1222 -13- 15 of 17 FILED: ERIE COUNTY CLERK 02/03/2024 07:44 PM INDEX NO. 801783/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/03/2024 STATE OF NEW YORK SUPREME COURT : COUNTY OF ERIE _____________________________________ JEREMIAH J. OLIVER, Plaintiff -vs- KING TIRE INC, JOHN DOE TIRE STORE (the name John Doe Tire Store being fictitious, as the true name and identity of said Defendant is presently unknown to the Plaintiff. Said Defendant being the tire store that installed tires on Plaintiff’s vehicle prior to the happening of the incident alleged in the Plaintiff’s Complaint, in the event that Defendant, KING TIRE INC did not do so), Defendants _____________________________________ NOTICE OF ELECTRONIC FILING (Mandatory Case) (Uniform Rule § 202.5-bb) You have received this Notice because: 1) The Plaintiff/Petitioner, whose name is listed above, has filed this case using the New York State Courts E-filing system (“NYSCEF”), and 2) You are a Defendant/Respondent (a party) in this case. • If you are represented by an attorney: Give this Notice to your attorney. (Attorneys: see “Information for Attorneys” pg. 2). • If you are not represented by an attorney: You will be served with all documents in paper and you must serve and file your documents in paper, unless you choose to participate in e-filing. If you choose to participate in e-filing, you must have access to a computer and a scanner or other device to convert documents into electronic format, a connection to the internet, and an e-mail address to receive service of documents. The benefits of participating in e-filing include: • serving and filing your documents electronically 16 of 17 FILED: ERIE COUNTY CLERK 02/03/2024 07:44 PM INDEX NO. 801783/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/03/2024 • free access to view and print your e-filed documents • limiting your number of trips to the courthouse • paying any court fees on-line (credit card needed) To register for e-filing or for more information about how e-filing works: • visit: www.nycourts.gov/efile-unrepresented or • contact the Clerk’s Office or Help Center at the court where the case was filed. Court contact information can be found at www.nycourts.gov To find legal information to help you represent yourself visit www.nycourthelp.gov Information for Attorneys (E-filing is Mandatory for Attorneys) An attorney representing a party who is served with this notice must either: 1) immediately record his or her representation within the e-filed matter on the NYSCEF site www.nycourts.gov/efile; or 2) file the Notice of Opt-Out form with the clerk of the court where this action is pending and serve on all parties. Exemptions from mandatory e-filing are limited to attorneys who certify in good faith that they lack the computer hardware and/or scanner and/or internet connection or that they lack (along with all employees subject to their direction) the knowledge to operate such equipment. [Section 202.5-bb(e)] For additional information about electronic filing and to create a NYSCEF account, visit the NYSCEF website at www.nycourts.gov/e-file or contact the NYSCEF Resource Center (phone: 646-386-3033; email: nyscef@nycourts.gov). Dated: February 2, 2024 (Signature) 716-855-1222 (Phone) John J. Fromen, Jr. (Name) 716-855-1239 (Fax) John J. Fromen, Attorneys at Law, P.C. (Firm) jjfjr@fromenlaw.com (E-mail) 4367 Harlem Road (Address) Snyder, NY 14226 Attorney(s) for Plaintiff TO: KING TIRE INC, JOHN DOE TIRE STORE 17 of 17