Preview
FILED: QUEENS COUNTY CLERK 03/25/2024 05:38 PM INDEX NO. 710001/2015
NYSCEF DOC. NO. 449 RECEIVED NYSCEF: 03/25/2024
EXHIBIT C
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NYSCEF
NYSCEF DOC.
DOC. NO.
NO. 8449 RECEIVED
RECEIVEDNYSCEF:
NYSCEF:12/10/201
03/25/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
---__-.......--..._ ___-------..------..--......---....---...............____Ç
FIRST BAPTIST CHURCH OF FLUSHING, : Index No. 710001/2015
Plaintiff, : AMENDED VERIFIED ANSWER
: with COUNTERCLAIMS and
- against - : CROSS-CLAIMS
:
X & Y DEVELOPMENT GROUP, LLC, :
FLEET FINANCIAL GROUP, INC., :
RACANELLI CONSTRUCTION GROUP INC., :
FLEET ARCHITECTS LLP, :
OWEIS ENGINEERING, INC., :
5D ARCHITECTS & ENGINEERING, PLLC, :
VACHRIS ENGINEERING, P.C., :
D-BEST INDUSTRIES CORP. and :
TWIN PEAKS INCORPORATED, :
:
Defendants. :
..----------------.._ ____.-------...----------------------------......__Ç
PLEASE TAKE NOTICE that Defendant X & Y DEVELOPMENT GROUP, LLC,
FLEET FINANCIAL GROUP, INC., RACANELLI CONSTRUCTION GROUP INC. and
FLEET ARCHITECTS LLP ("Defendants"), by and through their attorneys, Michael J. Kapin,
P.C., interposes the following Amended Verified Answer to Plaintiff FIRST BAPTIST
CHURCH OF FLUSHING's ("Plaintiff") Verified Complaint:
1. That without defenses- GENERAL
waiving any jurisdictional DENIAL.
SPECIFIC RESPONSES
2. Deny possessing knowledge or information sufficient to form a belief as to the truth of
the allegations contained in paragraphs 1, 6, 7, 8, 9, 10 of Plaintiff s Complaint.
3. Admit the allegations contained in paragraph 2 of Plaintiff's Complaint, except deny
Mirage"
that Plaintiff has accurately described the specifications of the "Eastern development
.
FILED: QUEENS COUNTY CLERK 03/25/2024 05:38 PM INDEX NO. 710001/2015
NYSCEF DOC. NO. 449 RECEIVED NYSCEF: 03/25/2024
project.
4. Deny the portion of paragraph 3 to the extent it is unintelligible.
5. The averments contained in paragraphs 4 and 5 of Plaintiff's Complaint contain legal
conclusions to which no response is required. To the extent that they refer to documents, let
the document(s) referred to therein speak for itself.
6. As and for a response to paragraph 11 of Plaintiff's Complaint, admit that Fleet
Financial Group Inc. sought to negotiate an access license agreement with Plaintiff, but that no
agreement was ultimately entered into, otherwise deny the allegations contained therein.
7. As and for a response to paragraph 12 of Plaintiff's Complaint, admit that Fleet
Financial Group Inc. sought to negotiate an access license agreement with Plaintiff, but that no
agreement was ultimately entered into, otherwise deny the allegations contained therein.
8. As and for a response to paragraph 13 of Plaintiff's Complaint, admit that Defendants
safely excavated Developer's Property, otherwise deny the allegations contained therein.
9. Deny the allegations contained in paragraph 14 of Plaintiff's Complaint and object to
the form of the allegation.
10. Deny the allegations contained in paragraph 15 of Plaintiff's Complaint and object to
the form of the allegation.
11. Deny possessing knowledge or information sufficient to form a belief as to the truth of
the allegations contained in paragraph 16 of Plaintiff's Complaint and object to the allegation
to the extent that it is unintelligible.
12. As and for a response to paragraph 17 of Plaintiff's Complaint, deny possessing
knowledge or information sufficient to form a belief as to the truth of whether The Church
made any reports to the DOB, otherwise deny the allegations contained therein.
FILED: QUEENS COUNTY CLERK 03/25/2024 05:38 PM INDEX NO. 710001/2015
NYSCEF DOC. NO. 449 RECEIVED NYSCEF: 03/25/2024
13. As and for a response to paragraph 18 of Plaintiff's Complaint, admit that Defendants
maintain cameras on the jobsite, otherwise denied.
14. Deny the allegations contained in paragraph 19 of Plaintiff's Complaint.
15. The averments contained in paragraph 20 of Plaintiff's Complaint contain legal
conclusions to which no response is required. To the extent a response is required, Defendants
deny the allegations contained therein.
16. The averments contained in paragraph 21 of Plaintiff's Complaint contain legal
conclusions to which no response is required. To the extent a response is required, Defendants
deny the allegations contained therein.
17. Deny possessing knowledge or information sufficient to form a belief as to the truth of
the allegations contained in paragraph 22 of Plaintiff's Complaint.
18. As and for a response to paragraph 23 of Plaintiff's Complaint, deny possessing
knowledge or information sufficient to form a belief as to the truth of the allegations regarding
what actions Plaintiff did or did not take, but deny any responsibility for a soil collapse or a
trespass as alleged.
19. As and for a response to paragraph 24 of Plaintiff's Complaint, deny possessing
knowledge or information sufficient to form a belief as to the truth of the allegations regarding
what actions Plaintiff did or did not take, but deny any responsibility for any damages to
Plaintiff, whatsoever.
20. Deny the allegations contained in paragraphs 25, 26, 27, 28, 29 and 30 of Plaintiff's
Complaint.
21. As for paragraph 31 of Plaintiff's Complaint, repeat the responses to the allegations
repeated and realleged therein.
FILED: QUEENS COUNTY CLERK 03/25/2024 05:38 PM INDEX NO. 710001/2015
NYSCEF DOC. NO. 449 RECEIVED NYSCEF: 03/25/2024
22. Deny the allegations contained in paragraphs 32 and 33 of Plaintiff's Complaint.
23. As for paragraph 34 of Plaintiff's Complaint, repeat the responses to the allegations
repeated and realleged therein.
24. The averments contained in paragraph 35 of Plaintiff's Complaint contain legal
conclusions to which no response is required. To the extent a response is required, Defendants
deny the allegations contained therein.
25. Deny the allegations contained in paragraph 36 of Plaintiff's Complaint.
AFFIRMATIVE DEFENSES
26. Plaintiffs Complaint fails to state a claim upon which relief can be granted.
27. Equitable defenses, including estoppel, laches, waiver, and unclean hands.
28. Consent.
29. Justification and excuse.
30. Defendants were not negligent and cannot be held liable on the causes of action asserted
in the Complaint of Plaintiff.
31. Any acts or omissions on the part of Defendants were not the proximate cause and or
substantial factor of the damages claimed by Plaintiff.
32. The negligent acts or omissions of other individuals and/or entities constituted
intervening/superceding causes of the damages allegedly sustained by Plaintiff, if any.
33. Any damages sustained by the Plaintiff or claimed by the Plaintiff was not caused by any
act or omission of Defendants.
34. Any damages alleged to have been sustained by the Plaintiff were not proximately caused
by Defendants.
Defendants'
35. Actions or individuals and/or entities beyond control may have caused or
contributed to Plaintiffs damages, if any.
36. All claims against Defendants are barred by the applicable Statute of Limitations.
FILED: QUEENS COUNTY CLERK 03/25/2024 05:38 PM INDEX NO. 710001/2015
NYSCEF DOC. NO. 449 RECEIVED NYSCEF: 03/25/2024
37. Plaintiff was comparatively or contributorily negligent.
38. Plaintiff has failed to mitigate its damages.
39. Plaintiff has failed to name and/or prosecute a necessary party.
40. Defendants, by way of affirmative defense, repeats and incorporates by reference the
counterclaims and cross-claims set forth below as if set forth at length herein.
41. Defendants reserve their right to supplement this Answer and Affirmative Defenses as
additional information becomes available.
COUNTERCLAIMS
FACTS APPLICABLE TO ALL COUNTERCLAIMS
42. Defendant Fleet Financial Group, Inc. ("Fleet") is the developer of X & Y Development
Group LLC's ("X&Y") property at 42-31 Union Street, Flushing, New York which abuts
Plaintiff's property. Fleet is building a mixed-use project containing a medical center with
offices and condominium units at 42-31 Union Street, Flushing, New York, which has received
many accolades from the community for the benefits Fleet's project has and will continue to
bring to the community.
43. Prior to beginning excavation, Fleet reached out to each of its four neighboring properties
(including the Plaintiff's property) to obtain their permission for Fleet to have limited access to
the neighboring properties so it could complete it excavation and construction project. The
access requested from Plaintiff would have involved using soil nails which would have entered
Plaintiff's property. The soil nail method is fairly standard in the industry and would have
minimally intruded onto Plaintiff's property. Moreover had Plaintiff needed to excavate in the
future, the soil nail were temporary and could have been easily cut and removed from Plaintiff's
property.
44. Out of the four neighbors surrounding Fleet's project, Plaintiff was the only one who
refused to permit Fleet access to use soil nails to support Plaintiff's property.
45. Fleet proceeded without the cooperation of Plaintiff in a completely safe and high quality
manner to excavate its jobsite.
FILED: QUEENS COUNTY CLERK 03/25/2024 05:38 PM INDEX NO. 710001/2015
NYSCEF DOC. NO. 449 RECEIVED NYSCEF: 03/25/2024
46. Fleet excavated its jobsite fifty feet below grade, and provided support of Plaintiff's
property included steel piles, installed in a manner approved by Fleet's engineers and approved
by the New York City Department of Buildings.
47. On or around March 6, 2014, without any notice to Defendants, Plaintiff began doing
boring on its property.
48. Upon information and belief, Plaintiff, as part of a scheme to cause harm to Defendants,
bored the soil of its property as a pretext to cause harm to Fleet's development project.
49. Plaintiff did boring of its soil within inches of Fleet's property line. That is, Plaintiff
drilled deep holes into its soil directly adjacent to Fleet's fifty foot excavation into the ground.
50. Upon information and belief, for its purposes, Plaintiff could have bored soil
investigation holes in any location on its property to serve its purposes.
51. Upon information and belief, at the time of the boring, Plaintiff was required to but did
not have proper work permits to do work on its jobsite.
52. Upon information and belief, Plaintiff only needed to drill one or two holes into its
property, but instead chose to bore several holes.
53. Plaintiff used a wet boring method which soaked the holes with water thereby causing the
soil surrounding the holes to become heavily saturated with water.
54. Upon information and belief, Plaintiff could and should have used dry boring which
would have prevented water saturation of its soil.
55. Upon information and belief, Plaintiff intentionally filled its boring holes with more
water than needed for any reasonable purpose, in an attempt to further saturate the soil
surrounding Fleet's excavation.
56. Upon information and belief, Plaintiff sought to bore holes adjacent to Fleet's excavation
site, using a wet boring method, boring more holes than needed, and adding extra water to these
holes as part of a scheme to cause damage and harm to Defendants.
57. As a result of the immense amount of water Plaintiff put into its several boring holes,
adjacent to Fleet's fifty foot excavation, a great force and additional pressure was exerted upon
FILED: QUEENS COUNTY CLERK 03/25/2024 05:38 PM INDEX NO. 710001/2015
NYSCEF DOC. NO. 449 RECEIVED NYSCEF: 03/25/2024
the support elements Fleet installed to support its excavation and to support Plaintiff s land.
58. Fleet, through coordination with its engineers, designed its support system to support
Plaintiff's land under normal conditions. This included rain water which could saturate into the
ground. This did not, however, support the abnormal and dangerous water saturation levels
which existed as a result of Plaintiff s intentionally destructive boring actions.
59. As a result of Plaintiff s actions as aforementioned, certain of the piling supports installed
by Fleet's contractors bent slightly towards the interior of Fleet's excavation.
60. As a result of Plaintiff's action as aforementioned, Fleet had to immediately vacate its
jobsite.
61. As a result of Plaintiff's actions as aforementioned, Fleet had to incur extensive
engineering expenses for monitoring the subject damage.
62. As a result of Plaintiff s actions as aforementioned, Fleet had to pay for emergency
remediation to fix the support of excavation system damaged by Plaintiff s actions.
63. As a result of Plaintiff's actions as aforementioned, Fleet was delayed several months in
its development project.
64. No explanation exists for Plaintiff's action other than that they had a desire to cause
intentional harm to Fleet's excavation and X&Y's property.
65. In addition to Plaintiff's negligence with regard to boring holes, Plaintiff created a
dangerous condition to Fleet's jobsite and put human life in danger.
66. As an additional example of Plaintiff's negligence, on or about June 18, 2014, a heavy
piece of plywood from Plaintiff s property fell onto X&Y's property. The piece of heavy
plywood hit a beam on Fleet's jobsite and then hit a skilled worker on the jobsite in the head. An
ambulance had to be called for the worker. The worker was seriously injured. Moreover, Fleet
suffered a delay in its development as a result of the injury and a further delay as a result of the
time it took to replace the skilled worker.
67. Upon information and belief, at the time the plywood fell, Plaintiff did not have
scaffolding and/or necessary protection it was required to have by the building code.
FILED: QUEENS COUNTY CLERK 03/25/2024 05:38 PM INDEX NO. 710001/2015
NYSCEF DOC. NO. 449 RECEIVED NYSCEF: 03/25/2024
FIRST COUNTERCLAIM
NEGLIGENCE
68. Defendants repeat and reiterate each of the allegations contained in the previous
paragraphs in their entirety with the same full force and effect as though more fully set forth
herein at length.
69. The boring conducted by Plaintiff and the consequent damages to the X&Y's property
and Fleet's jobsite was proximately caused by the negligence, recklessness, negligence per se,
gross negligence, carelessness and negligent omissions of the Plaintiff, their agents, servants,
workmen and/or employees.
70. Plaintiff failed to adequately design, plan, execute, inspect, and oversee the drilling and/
or boring at Plaintiff's premises.
71. Plaintiff failing to use ordinary care during the drilling and/ or boring at its premises.
72. Plaintiff failed to perceive a foreseeable risk and failed to act in a prudent manner in
protecting X&Y's property and Fleet's jobsite from damage as a result of Plaintiff's boring
activities.
73. Plaintiff was negligent in creating conditions that would cause damage to the Defendants.
74. Plaintiff was negligent in failing to properly maintain/protect the work area in a safe
manner as to prevent a high degree of risk of hazard to Defendants.
75. Plaintiff was negligent in failing to hire competent servants, contractors, agents,
employees and/or workmen to properly maintain and protect the Defendants.
76. Plaintiff was negligent in failing to ensure that its agents, servants, contractors and/or
workmen abided by applicable codes, ordinances, rules and regulations and/or industry standards
concerning Plaintiff's boring activities.
77. Plaintiff was negligent in failing to properly supervise, train, and/or instruct its employees
or agents in the proper care of the work area of excavation.
78. Plaintiff if not intentionally trying to cause harm to Defendants, was negligent in failing
to recognize the obvious hazards presented by boring in or near proximity to a fifty foot
FILED: QUEENS COUNTY CLERK 03/25/2024 05:38 PM INDEX NO. 710001/2015
NYSCEF DOC. NO. 449 RECEIVED NYSCEF: 03/25/2024
excavation site and saturating the soil through its boring.
79. Plaintiff was negligent in failing to warn Defendants of the additional risk to the X&Y's
property and Fleet's property as a result of the unsafe contracting activities.
80. Plaintiff was negligent in failing to do those things which were necessary to safely
preserve and protect X&Y's property and Fleet's jobsite.
81. Plaintiff was negligent in otherwise failing to use due care and proper skill under the
circumstances.
82. As a direct and proximate cause of the aforesaid negligence per se, negligence,
carelessness, recklessness, gross negligence and negligent acts and omissions of the Plaintiff and
their representatives, agents, servants and/or employees, Defendants were damaged.
83. By reason of the foregoing, Defendants have been damaged in the amount subject to
proof at trial, but believed to exceed $1,000,000.00.
84. As a result of Plaintiff's intentional, deliberate, malicious and forceful actions, in gross,
Defendants'
willful and wanton disregard for the rights, and by putting human life and safety in
jeopardy, a judgment is warranted against Plaintiff with an award of exemplary and punitive
damages in an amount of not less than $5,000,000.00.
SECOND COUNTERCLAIM
TRESPASS
85. Defendants repeat and reiterate each of the allegations contained in the previous
paragraphs in their entirety with the same full force and effect as though more fully set forth
herein at length.
86. As a result of Plaintiff's actions, Plaintiff committed an unpermitted entry upon and
trespass on X&Y's property and Fleet's jobsite, without any right or justification.
87. Plaintiff's foregoing trespass caused damages to Defendant's property.
88. reason of the foregoing, Defendants have been damaged in the amount subject to
By
proof at trial, but believed to exceed $1,000,000.00.
FILED: QUEENS COUNTY CLERK 03/25/2024 05:38 PM INDEX NO. 710001/2015
NYSCEF DOC. NO. 449 RECEIVED NYSCEF: 03/25/2024
89. As a result of Plaintiff's intentional, deliberate, malicious and forceful actions, in gross,
Defendants'
willful and wanton disregard for the rights, and by putting human life and safety in
jeopardy, a judgment is warranted against Plaintiff with an award of exemplary and punitive
damages in an amount of not less than $5,000,000.00.
THIRD COUNTERCLAIM
VIOLATION OF SECTION BC 3301
90. Defendants repeat and reiterate each of the allegations contained in the previous
paragraphs in their entirety with the same full force and effect as though
Preview
FILED: QUEENS COUNTY CLERK 03/25/2024 05:38 PM INDEX NO. 710001/2015 NYSCEF DOC. NO. 449 RECEIVED NYSCEF: 03/25/2024 EXHIBIT C ... .e.me..su . vme.""mw FILED: yQUEENS wwve CLERK .m.m.. COUNTY wa.smem g .e. v g a- v .m.w 03/25/2024 -r . v 05:38 e- PM INDEX NO. 710001/2015 NYSCEF NYSCEF DOC. DOC. NO. NO. 8449 RECEIVED RECEIVEDNYSCEF: NYSCEF:12/10/201 03/25/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS ---__-.......--..._ ___-------..------..--......---....---...............____Ç FIRST BAPTIST CHURCH OF FLUSHING, : Index No. 710001/2015 Plaintiff, : AMENDED VERIFIED ANSWER : with COUNTERCLAIMS and - against - : CROSS-CLAIMS : X & Y DEVELOPMENT GROUP, LLC, : FLEET FINANCIAL GROUP, INC., : RACANELLI CONSTRUCTION GROUP INC., : FLEET ARCHITECTS LLP, : OWEIS ENGINEERING, INC., : 5D ARCHITECTS & ENGINEERING, PLLC, : VACHRIS ENGINEERING, P.C., : D-BEST INDUSTRIES CORP. and : TWIN PEAKS INCORPORATED, : : Defendants. : ..----------------.._ ____.-------...----------------------------......__Ç PLEASE TAKE NOTICE that Defendant X & Y DEVELOPMENT GROUP, LLC, FLEET FINANCIAL GROUP, INC., RACANELLI CONSTRUCTION GROUP INC. and FLEET ARCHITECTS LLP ("Defendants"), by and through their attorneys, Michael J. Kapin, P.C., interposes the following Amended Verified Answer to Plaintiff FIRST BAPTIST CHURCH OF FLUSHING's ("Plaintiff") Verified Complaint: 1. That without defenses- GENERAL waiving any jurisdictional DENIAL. SPECIFIC RESPONSES 2. Deny possessing knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 1, 6, 7, 8, 9, 10 of Plaintiff s Complaint. 3. Admit the allegations contained in paragraph 2 of Plaintiff's Complaint, except deny Mirage" that Plaintiff has accurately described the specifications of the "Eastern development . FILED: QUEENS COUNTY CLERK 03/25/2024 05:38 PM INDEX NO. 710001/2015 NYSCEF DOC. NO. 449 RECEIVED NYSCEF: 03/25/2024 project. 4. Deny the portion of paragraph 3 to the extent it is unintelligible. 5. The averments contained in paragraphs 4 and 5 of Plaintiff's Complaint contain legal conclusions to which no response is required. To the extent that they refer to documents, let the document(s) referred to therein speak for itself. 6. As and for a response to paragraph 11 of Plaintiff's Complaint, admit that Fleet Financial Group Inc. sought to negotiate an access license agreement with Plaintiff, but that no agreement was ultimately entered into, otherwise deny the allegations contained therein. 7. As and for a response to paragraph 12 of Plaintiff's Complaint, admit that Fleet Financial Group Inc. sought to negotiate an access license agreement with Plaintiff, but that no agreement was ultimately entered into, otherwise deny the allegations contained therein. 8. As and for a response to paragraph 13 of Plaintiff's Complaint, admit that Defendants safely excavated Developer's Property, otherwise deny the allegations contained therein. 9. Deny the allegations contained in paragraph 14 of Plaintiff's Complaint and object to the form of the allegation. 10. Deny the allegations contained in paragraph 15 of Plaintiff's Complaint and object to the form of the allegation. 11. Deny possessing knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 16 of Plaintiff's Complaint and object to the allegation to the extent that it is unintelligible. 12. As and for a response to paragraph 17 of Plaintiff's Complaint, deny possessing knowledge or information sufficient to form a belief as to the truth of whether The Church made any reports to the DOB, otherwise deny the allegations contained therein. FILED: QUEENS COUNTY CLERK 03/25/2024 05:38 PM INDEX NO. 710001/2015 NYSCEF DOC. NO. 449 RECEIVED NYSCEF: 03/25/2024 13. As and for a response to paragraph 18 of Plaintiff's Complaint, admit that Defendants maintain cameras on the jobsite, otherwise denied. 14. Deny the allegations contained in paragraph 19 of Plaintiff's Complaint. 15. The averments contained in paragraph 20 of Plaintiff's Complaint contain legal conclusions to which no response is required. To the extent a response is required, Defendants deny the allegations contained therein. 16. The averments contained in paragraph 21 of Plaintiff's Complaint contain legal conclusions to which no response is required. To the extent a response is required, Defendants deny the allegations contained therein. 17. Deny possessing knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 22 of Plaintiff's Complaint. 18. As and for a response to paragraph 23 of Plaintiff's Complaint, deny possessing knowledge or information sufficient to form a belief as to the truth of the allegations regarding what actions Plaintiff did or did not take, but deny any responsibility for a soil collapse or a trespass as alleged. 19. As and for a response to paragraph 24 of Plaintiff's Complaint, deny possessing knowledge or information sufficient to form a belief as to the truth of the allegations regarding what actions Plaintiff did or did not take, but deny any responsibility for any damages to Plaintiff, whatsoever. 20. Deny the allegations contained in paragraphs 25, 26, 27, 28, 29 and 30 of Plaintiff's Complaint. 21. As for paragraph 31 of Plaintiff's Complaint, repeat the responses to the allegations repeated and realleged therein. FILED: QUEENS COUNTY CLERK 03/25/2024 05:38 PM INDEX NO. 710001/2015 NYSCEF DOC. NO. 449 RECEIVED NYSCEF: 03/25/2024 22. Deny the allegations contained in paragraphs 32 and 33 of Plaintiff's Complaint. 23. As for paragraph 34 of Plaintiff's Complaint, repeat the responses to the allegations repeated and realleged therein. 24. The averments contained in paragraph 35 of Plaintiff's Complaint contain legal conclusions to which no response is required. To the extent a response is required, Defendants deny the allegations contained therein. 25. Deny the allegations contained in paragraph 36 of Plaintiff's Complaint. AFFIRMATIVE DEFENSES 26. Plaintiffs Complaint fails to state a claim upon which relief can be granted. 27. Equitable defenses, including estoppel, laches, waiver, and unclean hands. 28. Consent. 29. Justification and excuse. 30. Defendants were not negligent and cannot be held liable on the causes of action asserted in the Complaint of Plaintiff. 31. Any acts or omissions on the part of Defendants were not the proximate cause and or substantial factor of the damages claimed by Plaintiff. 32. The negligent acts or omissions of other individuals and/or entities constituted intervening/superceding causes of the damages allegedly sustained by Plaintiff, if any. 33. Any damages sustained by the Plaintiff or claimed by the Plaintiff was not caused by any act or omission of Defendants. 34. Any damages alleged to have been sustained by the Plaintiff were not proximately caused by Defendants. Defendants' 35. Actions or individuals and/or entities beyond control may have caused or contributed to Plaintiffs damages, if any. 36. All claims against Defendants are barred by the applicable Statute of Limitations. FILED: QUEENS COUNTY CLERK 03/25/2024 05:38 PM INDEX NO. 710001/2015 NYSCEF DOC. NO. 449 RECEIVED NYSCEF: 03/25/2024 37. Plaintiff was comparatively or contributorily negligent. 38. Plaintiff has failed to mitigate its damages. 39. Plaintiff has failed to name and/or prosecute a necessary party. 40. Defendants, by way of affirmative defense, repeats and incorporates by reference the counterclaims and cross-claims set forth below as if set forth at length herein. 41. Defendants reserve their right to supplement this Answer and Affirmative Defenses as additional information becomes available. COUNTERCLAIMS FACTS APPLICABLE TO ALL COUNTERCLAIMS 42. Defendant Fleet Financial Group, Inc. ("Fleet") is the developer of X & Y Development Group LLC's ("X&Y") property at 42-31 Union Street, Flushing, New York which abuts Plaintiff's property. Fleet is building a mixed-use project containing a medical center with offices and condominium units at 42-31 Union Street, Flushing, New York, which has received many accolades from the community for the benefits Fleet's project has and will continue to bring to the community. 43. Prior to beginning excavation, Fleet reached out to each of its four neighboring properties (including the Plaintiff's property) to obtain their permission for Fleet to have limited access to the neighboring properties so it could complete it excavation and construction project. The access requested from Plaintiff would have involved using soil nails which would have entered Plaintiff's property. The soil nail method is fairly standard in the industry and would have minimally intruded onto Plaintiff's property. Moreover had Plaintiff needed to excavate in the future, the soil nail were temporary and could have been easily cut and removed from Plaintiff's property. 44. Out of the four neighbors surrounding Fleet's project, Plaintiff was the only one who refused to permit Fleet access to use soil nails to support Plaintiff's property. 45. Fleet proceeded without the cooperation of Plaintiff in a completely safe and high quality manner to excavate its jobsite. FILED: QUEENS COUNTY CLERK 03/25/2024 05:38 PM INDEX NO. 710001/2015 NYSCEF DOC. NO. 449 RECEIVED NYSCEF: 03/25/2024 46. Fleet excavated its jobsite fifty feet below grade, and provided support of Plaintiff's property included steel piles, installed in a manner approved by Fleet's engineers and approved by the New York City Department of Buildings. 47. On or around March 6, 2014, without any notice to Defendants, Plaintiff began doing boring on its property. 48. Upon information and belief, Plaintiff, as part of a scheme to cause harm to Defendants, bored the soil of its property as a pretext to cause harm to Fleet's development project. 49. Plaintiff did boring of its soil within inches of Fleet's property line. That is, Plaintiff drilled deep holes into its soil directly adjacent to Fleet's fifty foot excavation into the ground. 50. Upon information and belief, for its purposes, Plaintiff could have bored soil investigation holes in any location on its property to serve its purposes. 51. Upon information and belief, at the time of the boring, Plaintiff was required to but did not have proper work permits to do work on its jobsite. 52. Upon information and belief, Plaintiff only needed to drill one or two holes into its property, but instead chose to bore several holes. 53. Plaintiff used a wet boring method which soaked the holes with water thereby causing the soil surrounding the holes to become heavily saturated with water. 54. Upon information and belief, Plaintiff could and should have used dry boring which would have prevented water saturation of its soil. 55. Upon information and belief, Plaintiff intentionally filled its boring holes with more water than needed for any reasonable purpose, in an attempt to further saturate the soil surrounding Fleet's excavation. 56. Upon information and belief, Plaintiff sought to bore holes adjacent to Fleet's excavation site, using a wet boring method, boring more holes than needed, and adding extra water to these holes as part of a scheme to cause damage and harm to Defendants. 57. As a result of the immense amount of water Plaintiff put into its several boring holes, adjacent to Fleet's fifty foot excavation, a great force and additional pressure was exerted upon FILED: QUEENS COUNTY CLERK 03/25/2024 05:38 PM INDEX NO. 710001/2015 NYSCEF DOC. NO. 449 RECEIVED NYSCEF: 03/25/2024 the support elements Fleet installed to support its excavation and to support Plaintiff s land. 58. Fleet, through coordination with its engineers, designed its support system to support Plaintiff's land under normal conditions. This included rain water which could saturate into the ground. This did not, however, support the abnormal and dangerous water saturation levels which existed as a result of Plaintiff s intentionally destructive boring actions. 59. As a result of Plaintiff s actions as aforementioned, certain of the piling supports installed by Fleet's contractors bent slightly towards the interior of Fleet's excavation. 60. As a result of Plaintiff's action as aforementioned, Fleet had to immediately vacate its jobsite. 61. As a result of Plaintiff's actions as aforementioned, Fleet had to incur extensive engineering expenses for monitoring the subject damage. 62. As a result of Plaintiff s actions as aforementioned, Fleet had to pay for emergency remediation to fix the support of excavation system damaged by Plaintiff s actions. 63. As a result of Plaintiff's actions as aforementioned, Fleet was delayed several months in its development project. 64. No explanation exists for Plaintiff's action other than that they had a desire to cause intentional harm to Fleet's excavation and X&Y's property. 65. In addition to Plaintiff's negligence with regard to boring holes, Plaintiff created a dangerous condition to Fleet's jobsite and put human life in danger. 66. As an additional example of Plaintiff's negligence, on or about June 18, 2014, a heavy piece of plywood from Plaintiff s property fell onto X&Y's property. The piece of heavy plywood hit a beam on Fleet's jobsite and then hit a skilled worker on the jobsite in the head. An ambulance had to be called for the worker. The worker was seriously injured. Moreover, Fleet suffered a delay in its development as a result of the injury and a further delay as a result of the time it took to replace the skilled worker. 67. Upon information and belief, at the time the plywood fell, Plaintiff did not have scaffolding and/or necessary protection it was required to have by the building code. FILED: QUEENS COUNTY CLERK 03/25/2024 05:38 PM INDEX NO. 710001/2015 NYSCEF DOC. NO. 449 RECEIVED NYSCEF: 03/25/2024 FIRST COUNTERCLAIM NEGLIGENCE 68. Defendants repeat and reiterate each of the allegations contained in the previous paragraphs in their entirety with the same full force and effect as though more fully set forth herein at length. 69. The boring conducted by Plaintiff and the consequent damages to the X&Y's property and Fleet's jobsite was proximately caused by the negligence, recklessness, negligence per se, gross negligence, carelessness and negligent omissions of the Plaintiff, their agents, servants, workmen and/or employees. 70. Plaintiff failed to adequately design, plan, execute, inspect, and oversee the drilling and/ or boring at Plaintiff's premises. 71. Plaintiff failing to use ordinary care during the drilling and/ or boring at its premises. 72. Plaintiff failed to perceive a foreseeable risk and failed to act in a prudent manner in protecting X&Y's property and Fleet's jobsite from damage as a result of Plaintiff's boring activities. 73. Plaintiff was negligent in creating conditions that would cause damage to the Defendants. 74. Plaintiff was negligent in failing to properly maintain/protect the work area in a safe manner as to prevent a high degree of risk of hazard to Defendants. 75. Plaintiff was negligent in failing to hire competent servants, contractors, agents, employees and/or workmen to properly maintain and protect the Defendants. 76. Plaintiff was negligent in failing to ensure that its agents, servants, contractors and/or workmen abided by applicable codes, ordinances, rules and regulations and/or industry standards concerning Plaintiff's boring activities. 77. Plaintiff was negligent in failing to properly supervise, train, and/or instruct its employees or agents in the proper care of the work area of excavation. 78. Plaintiff if not intentionally trying to cause harm to Defendants, was negligent in failing to recognize the obvious hazards presented by boring in or near proximity to a fifty foot FILED: QUEENS COUNTY CLERK 03/25/2024 05:38 PM INDEX NO. 710001/2015 NYSCEF DOC. NO. 449 RECEIVED NYSCEF: 03/25/2024 excavation site and saturating the soil through its boring. 79. Plaintiff was negligent in failing to warn Defendants of the additional risk to the X&Y's property and Fleet's property as a result of the unsafe contracting activities. 80. Plaintiff was negligent in failing to do those things which were necessary to safely preserve and protect X&Y's property and Fleet's jobsite. 81. Plaintiff was negligent in otherwise failing to use due care and proper skill under the circumstances. 82. As a direct and proximate cause of the aforesaid negligence per se, negligence, carelessness, recklessness, gross negligence and negligent acts and omissions of the Plaintiff and their representatives, agents, servants and/or employees, Defendants were damaged. 83. By reason of the foregoing, Defendants have been damaged in the amount subject to proof at trial, but believed to exceed $1,000,000.00. 84. As a result of Plaintiff's intentional, deliberate, malicious and forceful actions, in gross, Defendants' willful and wanton disregard for the rights, and by putting human life and safety in jeopardy, a judgment is warranted against Plaintiff with an award of exemplary and punitive damages in an amount of not less than $5,000,000.00. SECOND COUNTERCLAIM TRESPASS 85. Defendants repeat and reiterate each of the allegations contained in the previous paragraphs in their entirety with the same full force and effect as though more fully set forth herein at length. 86. As a result of Plaintiff's actions, Plaintiff committed an unpermitted entry upon and trespass on X&Y's property and Fleet's jobsite, without any right or justification. 87. Plaintiff's foregoing trespass caused damages to Defendant's property. 88. reason of the foregoing, Defendants have been damaged in the amount subject to By proof at trial, but believed to exceed $1,000,000.00. FILED: QUEENS COUNTY CLERK 03/25/2024 05:38 PM INDEX NO. 710001/2015 NYSCEF DOC. NO. 449 RECEIVED NYSCEF: 03/25/2024 89. As a result of Plaintiff's intentional, deliberate, malicious and forceful actions, in gross, Defendants' willful and wanton disregard for the rights, and by putting human life and safety in jeopardy, a judgment is warranted against Plaintiff with an award of exemplary and punitive damages in an amount of not less than $5,000,000.00. THIRD COUNTERCLAIM VIOLATION OF SECTION BC 3301 90. Defendants repeat and reiterate each of the allegations contained in the previous paragraphs in their entirety with the same full force and effect as though