Preview
FILED: KINGS COUNTY CLERK 05/09/2024 05:03 PM INDEX NO. 523330/2019
NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 05/09/2024
"A"
Exhibit
FILED: KINGS COUNTY CLERK 05/09/2024 05:03 PM INDEX NO. 523330/2019
NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 05/09/2024
FILED COUNTY INDEX NO. 520414/2018
: KINGS CLERK : 4
NYS EF DOC. NO. 33 RECEIVED NYSCEF: 12/28/2018
Supreme Court of the State of New York
County of Kings
159 Smith, LLC, Index No.: 520414/2018
Plaintiff,
AMENDED
VERIFIED COMPLAINT
-against-
"1"
Boreum HillProperty Holdings, LLC, and John Doe
"5"
through John Doe inclusive, the last five names
being fictitious and unknown to Plaintiff, the persons
or parties intended being the persons, contractors,
agents and/or representatives of the Owner responsible
for performing the construction,
Defendants.
Smith"
Plaintiff, 159 Smith, LLC (herein referred to as "159 or "Plaintiff"), by its
attorneys, The Law Firm of Elias C. Schwartz, PLLC, as and for its Amended Verified
Complaint against the Defendant, Boreum Hill Property Holdings, LLC (herein referred to as
Hill" "1" "5"
"Boreum or "Defendant") and John Doe through John Doe inclusive, the last five
names being fictitious and unknown to Plaintiff, the persons or parties intended being the
persons, contractors, agents and/or representatives of the Owner responsible for performing
the construction (herein referred to as "John Doe") sets forth and alleges as follows:
1 of 19
FILED: KINGS COUNTY CLERK 05/09/2024 05:03 PM INDEX NO. 523330/2019
NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 05/09/2024
INDEX NO. 520414/2018
(FILED : KINGS COUNTY CLERK 12/28/2018 12: 43 PM|
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 12/28/2018
ALLEGATIONS COMMON TO ALL CAUSES OF ACTION
1. At all times relevant hereto, Plaintiff, 159 Smith, was and still is a domestic business
corporation, duly organized and existing pursuant to the laws of the State of New York
located with offices at 159 Smith Street, Brooklyn, New York.
2. At all times relevant hereto, Plaintiff, 159 Smith, was and still is the owner of certain
real property located at 159 Smith Street, Brooklyn, New York, a real property
consisting of both residential and commercial real estate.
3. Upon information and belief, at all times relevant hereto, Defendant Boreum Hill was
and still is a corporation duly organized and existing pursuant to the laws of the State
of New York with offices located at 2425 McDonald Avenue, Brooklyn, New York.
"1" "5"
4. Upon information and belief, Defendant(s) John Doe through John Doe
inclusive, the last five names being fictitious and unknown to Plaintiff, are the persons
or parties intended being the persons, contractors, agents and/or representatives of the
Owner responsible for performing the construction.
5. Upon information and belief, in 2018, Plaintiff became aware of Defendant's intention
to perform construction on the property located at 157 Smith Street, which is adjacent
to Plaintiff's property.
6. On or about January 2018, Boreum Hill obtained approved plans to perfonn
construction on the property located at 157 Smith Street, which plans include a trespass
on Plaintiff's property through the attachment of long anchor bolts.
2 of 19
FILED: KINGS COUNTY CLERK 05/09/2024 05:03 PM INDEX NO. 523330/2019
NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 05/09/2024
FILED : KINGS COUNTY CLERK 1 8 INDEX NO. 52C414/2018
: 4
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 12/28/2018
7. Said plans specify that permission to enter the adjoining property must be first obtained,
then a physical examination of said property shall be conducted, and the contractor is
advised to perform a pre-construction inspection of adjacent properties prior to the start
of any construction activity.
8. The Defendant never obtained permission to enter the Plaintiff's property or to drill
holes on Plaintiff's property, or affix their wall to Plaintiff's property.
9. Defendant has performed a pre-construction survey.
10. On or about May 10, 2018, Defendant, through prior counsel, represented to Plaintiff
that a proposed license agreement would be forwarded to Plaintiff once work on the
vertical extension was underway at the property located at 157 Smith Street.
11. No license agreement was ever received by Plaintiff from Defendant, thus Defendant
never had the right to enter Plaintiff's property.
12. No physical examination or pre-construction inspection of the Plaintiff's property was
conducted prior to commencing the construction.
13. Upon information and belief, prior to October 2018, Defendant began work at 157
Smith which included demolition and excavation.
14. Upon information and belief, in or around October 2018, Defendant drilled more than
one hundred (100) holes into Plaintiff's property.
15. Plaintiff sent several cease and desist demands to Defendant on October 8, 2018,
October 9, 2018, and October 10, 2018.
3 of 19
FILED: KINGS COUNTY CLERK 05/09/2024 05:03 PM INDEX NO. 523330/2019
NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 05/09/2024
FILED : KINGS COUNTY CLERK 12 /28 /2018 12 :43 INDEX NO. 520414/2018
Pl!
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 12/28/2018
16. Defendant ignored said cease and desist demands and continued construction on the
Plaintiff s property, including the pouring of concrete.
17. Plaintiff's building was completely and properly waterproofed prior to Defendant's
commencement of work at 157 Smith.
18. Following Defendant's demolition of the existing building at 157 Smith, Plaintiff s
North wall was exposed.
19. During Defendant's construction and/or demolition, Defendant did not adequately
protect Plaintiff s property as required by the New York City Building Code,
specifically Section BC 3309.
20. Both during and following demolition, Defendant failed to take the proper measures to
adequately protect Plaintiff s building.
21. Defendant did not weatherproof the exposed façade on Plaintiff's building as required
by the New York City Building Code.
22. Consequently, on or about November 14, 2018, water infiltrated and continues to
infiltrate Plaintiff s building on the north side adjacent to 157 Smith Street at the
exposed wall due to Defendant's failure to adequately protect Plaintiff s property as
required4y4he New York City Building Code.
23. Plaintiff's building continues to take on water and sustain resulting damages due to
Defendant's failure to adequately protect Plaintiff's property as required by the New
York City Building Code.
4 of 19
FILED: KINGS COUNTY CLERK 05/09/2024 05:03 PM INDEX NO. 523330/2019
NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 05/09/2024
INDEX NO. 520414/2018
(FILED : KINGS COUNTY CLERK 12/28/2018 12:43 PM|
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 12/28/2018
24. During the erection of their foundation wall at the rear part of 157 Smith Street adjacent
and abutting Plaintiff's property, Defendant penetrated the waterproof membrane on
Plaintiff's wall by drilling in excess of 100 holes into Plaintiff's foundation wall.
25. This drilling was done without the notice to or the permission of the Plaintiff.
26. In addition, Defendant failed to seal the gap between the new foundation wall and
Plaintiff's existing foundation wall.
27. As a result of Defendant's actions, water infiltrated and continues to infiltrate Plaintiff's
building in the rear where Defendant erected its foundation wall and Plaintiff has
sustained water damages in the rear of its building adjacent to where Defendant drilled
into Plaintiff's wall.
28. Plaintiff's building is now damaged by the water infiltration and continues to sustain
damages in an unknown sum due to the Defendant's failure to protect the Plaintiff's
wall in violation of the New York City Building Code.
AS AND FOR A FIRST CAUSE OF ACTION
TRESPASS ON PLAINTIFF'S PROPERTY
29. Plaintiff repeats, reiterates, and realleges each and every allegation set forth in the
"1" "28"
paragraphs numbered to as if set forth fully herein.
30. Plaintiff has title to the property at 159 Smith Street, Brooklyn, New York.
31. Defendant had no permission from Plaintiff to enter, encumber, or perform construction
work on Plaintiff's property.
5 of 19
FILED: KINGS COUNTY CLERK 05/09/2024 05:03 PM INDEX NO. 523330/2019
NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 05/09/2024
KINGS COUNTY CLERK INDEX No. 520414/2018
|FILED : 12/28/2018 12:43 PI4
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 12/28/2018
32. Despite the fact that Plaintiff did not permit Defendant to enter Plaintiff's property,
Defendant trespassed on Plaintiff's property by conducting construction, including, but
not limited to, the intentional drilling of holes through Plaintiff's property.
33. Upon information and belief, Defendant intentionally drilled more than one hundred
(100) holes into the property located at 159 Smith Street, Brooklyn, New York.
34. Upon information and belief, said drilling was done in connection with Defendant's
Support and Excavation Plan which expressly includes a trespass on the Plaintiff
Owner's property of a permanent nature.
35. Despite Defendant's notice from Plaintiff that this construction on Plaintiff's property
was not permitted by Plaintiff and Defendant should cease and desist said
construction immediately, Plaintiff continued to perform construction on Plaintiffs
property.
36. Upon information and belief, Defendant's construction performed on Plaintiff's
property located at 159 Smith Street, resulted in damages to Plaintiff.
37. As a result of the foregoing, Plaintiff is entitled to consequential damages, as a result
of the dorementioned trespass of Defendant, in a sum to be determined by the Court
as trier of fact.
6 of 19
FILED: KINGS COUNTY CLERK 05/09/2024 05:03 PM INDEX NO. 523330/2019
NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 05/09/2024
INDEX NO. 520414/2018
E'ILED : KINGS COUNTY CLERK 12 /28 /2018 12 : 43 PM)
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 12/28/2018
AS AND FOR A SECOND CAUSE OF ACTION
ENJOINING DEFENDANT FROM FURTHER CONSTRUCTION
38. Plaintiff repeats, reiterates, and realleges each and every allegation set forth in the
"1" "37"
paragraphs numbered to as if set forth fully herein.
39. Upon information and belief, the Defendant has proceeded with the construction work,
specifically the excavation of the Site based upon the Construction Plans submitted to
the New York City Department of Buildings (herein referred to as "DOB") in April
2017.
40. Upon information and belief, Defendant's Support of Excavation plans and drawings
fail to provide for adequate protection of 159 Smith Street as they require the drilling
of more than one hundred (100) holes through Plaintiff's property without any
accounting for how same will impact the integrity of the structure located at 159 Smith
Street.
41. Upon information and belief, Defendant's Support of excavation plans and drawings if
implemented as prepared and submitted will present a danger to the health and safety
of the future residents of 159 Smith Street.
Defendants'
42. Upon information and belief, support of excavation plans and drawings, if
implemented will compromise the structural integrity of 159 Smith Street.
Defendants'
43. Upon information and belief, support of excavation plans and drawings if
implemented as prepared and submitted will cause permanent damage to 159 Smith
Street.
7 of 19
FILED: KINGS COUNTY CLERK 05/09/2024 05:03 PM INDEX NO. 523330/2019
NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 05/09/2024
FILED : KINGS COUNTY CLERK 12 /28 /2018 12 INDEX NO. 520414/2018
: 43 Pli
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 12/28/2018
44. Upon information and belief, if Defendant is permitted to proceed with the excavation
pursuant to their submitted plans, Plaintiff will be irreparably harmed.
45. Unless Defendant is enjoined from proceeding with the construction, specifically the
excavation of the Site based upon the submitted plans, Plaintiff and the public at large
will suffer irreparable injury.
46. That Plaintiff has no adequate remedy at law.
47. For the foregoing reasons, Plaintiff is entitled to a temporary restraining order, and
temporary, preliminary, and permanent injunction restraining and enjoining
Defendants as well as their agents, representatives, and employees from entering into
159 Smith Street, performing and continuing to perform demolition and
construction/excavation without doing so in compliance with applicable law and
without first obtaining valid permits from the DOB which valid permits shall be based
upon appropriate Plans, in accordance with applicable laws and codes.
AS AND FOR A THIRD CAUSE OF ACTION
FOR NEGLIGENCE
48. Plaintiff repeats, reiterates, and realleges each and every allegation set forth in the
"1" "47"
paragraphs numbered to as if set forth fully herein.
49. Defendant häd a duty to Plaintiff to exercise reasonable care to protect the adjacent
property owner and general public during construction on its property.
8 of 19
FILED: KINGS COUNTY CLERK 05/09/2024 05:03 PM INDEX NO. 523330/2019
NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 05/09/2024
INDEX NO. 520414/2018
EŠLED : KINGS COUNTY CLERK : 4
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 12/28/2018
50. Both during and following Defendant's construction and/or demolition, Defendant
breached its duty and obligations to the general public and abutting properties,
including 159 Smith Street.
51. The Defendant's breaches and/or departures include, but are not limited to, failure to
draft, prepare, and submit Plans and specifications for the Project that adequately
protect the abutting property prior to commencing construction on 157 Smith Street.
52. Further, Defendant's breached the duty by failing to take the proper measures to
adequately protect Plaintiff's building, failing to weatherproof the exposed façade of
Plaintiff's building as required by the New York City Building Code, penetrating the
waterproof membrane on Plaintiff's wall by drilling in excess of 100 holes into
Plaintiff s foundation wall, and failing to seal the gap between the new foundation wall
and Plaintiff's existing foundation wall.
53. Consequently, on or about November 14, 2018, water infiltrated and continues to
infiltrate Plaintiff s building on the north side adjacent to 157 Smith Street at the
exposed wall due to Defendant's failure to adequately protect Plaintiff's property as
required by the New York City Building Code.
54. As a result of Defendant's breaches, water infiltrated and continues to infiltrate
Plaintiff s building in the rear where Defendant erected its foundation wall and Plaintiff
has sustained water damages in the rear of its building adjacent to where Defendant
drilled into Plaintiff s wall.
9 of 19
FILED: KINGS COUNTY CLERK 05/09/2024 05:03 PM INDEX NO. 523330/2019
NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 05/09/2024
FILED KINGS CLERK INDEX NO. 520414/2018
: COUNTY 12 /28 /2018 12 : 43 PM)
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 12/28/2018
55. Plaintiff's building is now damaged by the water infiltration and continues to sustain
damages in an unknown sum due to the Defendant's failure to protect the Plaintiff s
wall in violation of the New York City Building Code.
56. Defendant's breaches are uncured to date and they continue to act in violation of
Plaintiff's rights, causing Plaintiff damage and risk of further irreparable harm.
57. Defendant's conduct to date in the drilling in excess of 100 holes in Plaintiff's property
without authorization of Plaintiff, has substantially interfered with Plaintiff's rights to
the use and occupancy of its property interests at 159 Smith Street.
58. Defendant's conduct to date in conducting construction on the Plaintiff's property
without notice to Plaintiff or authorization of Plaintiff was unreasonable under all of
the circumstances.
59. Defendant's conduct to date in conducting construction that impacts the structure of
Plaintiff's property without taking necessary steps to protect the interest of the owners,
future tenants, and occupants of the adjoining property from hazardous conditions
resulting from its construction, has caused annoyance, discomfort, and inconvenience
to Plaintiff, its members, future tenants, and occupants.
60. As a result of Defendant's illegal and intentional conduct, Plaintiff has been specially
damaged in that such activities are hazardous to the life, health, and safety of, and
interfere with the rights, comforts, and conveniences of, the future tenants, occupants,
and invitees of 159 Smith Street, with a resultant depreciation in value of its property
10 of 19
FILED: KINGS COUNTY CLERK 05/09/2024 05:03 PM INDEX NO. 523330/2019
NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 05/09/2024
FILED INDEX NO. 520414/2018
: KINGS COUNTY CLERK 12 :
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 12/28/2018
interests, in a sum in excess of the jurisdictional limits of this Court, to be determined
by the trier of fact.
61. As a result of the foregoing, Plaintiff is entitled to consequential damages, as a result
of the aforementioned negligence, in a sum to be determined by the Court as trier of
fact.
AS AND FOR A FOURTH CAUSE OF ACTION
FOR PUNITIVE DAMAGES
62. Plaintiff repeats, reiterates, and realleges each and every allegation set forth in the
"1" "61"
paragraphs numbered to as if set forth fully herein.
63. Upon information and belief, the Defendant's conduct is indicative
Preview
FILED: KINGS COUNTY CLERK 05/09/2024 05:03 PM INDEX NO. 523330/2019 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 05/09/2024 "A" Exhibit FILED: KINGS COUNTY CLERK 05/09/2024 05:03 PM INDEX NO. 523330/2019 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 05/09/2024 FILED COUNTY INDEX NO. 520414/2018 : KINGS CLERK : 4 NYS EF DOC. NO. 33 RECEIVED NYSCEF: 12/28/2018 Supreme Court of the State of New York County of Kings 159 Smith, LLC, Index No.: 520414/2018 Plaintiff, AMENDED VERIFIED COMPLAINT -against- "1" Boreum HillProperty Holdings, LLC, and John Doe "5" through John Doe inclusive, the last five names being fictitious and unknown to Plaintiff, the persons or parties intended being the persons, contractors, agents and/or representatives of the Owner responsible for performing the construction, Defendants. Smith" Plaintiff, 159 Smith, LLC (herein referred to as "159 or "Plaintiff"), by its attorneys, The Law Firm of Elias C. Schwartz, PLLC, as and for its Amended Verified Complaint against the Defendant, Boreum Hill Property Holdings, LLC (herein referred to as Hill" "1" "5" "Boreum or "Defendant") and John Doe through John Doe inclusive, the last five names being fictitious and unknown to Plaintiff, the persons or parties intended being the persons, contractors, agents and/or representatives of the Owner responsible for performing the construction (herein referred to as "John Doe") sets forth and alleges as follows: 1 of 19 FILED: KINGS COUNTY CLERK 05/09/2024 05:03 PM INDEX NO. 523330/2019 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 05/09/2024 INDEX NO. 520414/2018 (FILED : KINGS COUNTY CLERK 12/28/2018 12: 43 PM| NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 12/28/2018 ALLEGATIONS COMMON TO ALL CAUSES OF ACTION 1. At all times relevant hereto, Plaintiff, 159 Smith, was and still is a domestic business corporation, duly organized and existing pursuant to the laws of the State of New York located with offices at 159 Smith Street, Brooklyn, New York. 2. At all times relevant hereto, Plaintiff, 159 Smith, was and still is the owner of certain real property located at 159 Smith Street, Brooklyn, New York, a real property consisting of both residential and commercial real estate. 3. Upon information and belief, at all times relevant hereto, Defendant Boreum Hill was and still is a corporation duly organized and existing pursuant to the laws of the State of New York with offices located at 2425 McDonald Avenue, Brooklyn, New York. "1" "5" 4. Upon information and belief, Defendant(s) John Doe through John Doe inclusive, the last five names being fictitious and unknown to Plaintiff, are the persons or parties intended being the persons, contractors, agents and/or representatives of the Owner responsible for performing the construction. 5. Upon information and belief, in 2018, Plaintiff became aware of Defendant's intention to perform construction on the property located at 157 Smith Street, which is adjacent to Plaintiff's property. 6. On or about January 2018, Boreum Hill obtained approved plans to perfonn construction on the property located at 157 Smith Street, which plans include a trespass on Plaintiff's property through the attachment of long anchor bolts. 2 of 19 FILED: KINGS COUNTY CLERK 05/09/2024 05:03 PM INDEX NO. 523330/2019 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 05/09/2024 FILED : KINGS COUNTY CLERK 1 8 INDEX NO. 52C414/2018 : 4 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 12/28/2018 7. Said plans specify that permission to enter the adjoining property must be first obtained, then a physical examination of said property shall be conducted, and the contractor is advised to perform a pre-construction inspection of adjacent properties prior to the start of any construction activity. 8. The Defendant never obtained permission to enter the Plaintiff's property or to drill holes on Plaintiff's property, or affix their wall to Plaintiff's property. 9. Defendant has performed a pre-construction survey. 10. On or about May 10, 2018, Defendant, through prior counsel, represented to Plaintiff that a proposed license agreement would be forwarded to Plaintiff once work on the vertical extension was underway at the property located at 157 Smith Street. 11. No license agreement was ever received by Plaintiff from Defendant, thus Defendant never had the right to enter Plaintiff's property. 12. No physical examination or pre-construction inspection of the Plaintiff's property was conducted prior to commencing the construction. 13. Upon information and belief, prior to October 2018, Defendant began work at 157 Smith which included demolition and excavation. 14. Upon information and belief, in or around October 2018, Defendant drilled more than one hundred (100) holes into Plaintiff's property. 15. Plaintiff sent several cease and desist demands to Defendant on October 8, 2018, October 9, 2018, and October 10, 2018. 3 of 19 FILED: KINGS COUNTY CLERK 05/09/2024 05:03 PM INDEX NO. 523330/2019 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 05/09/2024 FILED : KINGS COUNTY CLERK 12 /28 /2018 12 :43 INDEX NO. 520414/2018 Pl! NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 12/28/2018 16. Defendant ignored said cease and desist demands and continued construction on the Plaintiff s property, including the pouring of concrete. 17. Plaintiff's building was completely and properly waterproofed prior to Defendant's commencement of work at 157 Smith. 18. Following Defendant's demolition of the existing building at 157 Smith, Plaintiff s North wall was exposed. 19. During Defendant's construction and/or demolition, Defendant did not adequately protect Plaintiff s property as required by the New York City Building Code, specifically Section BC 3309. 20. Both during and following demolition, Defendant failed to take the proper measures to adequately protect Plaintiff s building. 21. Defendant did not weatherproof the exposed façade on Plaintiff's building as required by the New York City Building Code. 22. Consequently, on or about November 14, 2018, water infiltrated and continues to infiltrate Plaintiff s building on the north side adjacent to 157 Smith Street at the exposed wall due to Defendant's failure to adequately protect Plaintiff s property as required4y4he New York City Building Code. 23. Plaintiff's building continues to take on water and sustain resulting damages due to Defendant's failure to adequately protect Plaintiff's property as required by the New York City Building Code. 4 of 19 FILED: KINGS COUNTY CLERK 05/09/2024 05:03 PM INDEX NO. 523330/2019 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 05/09/2024 INDEX NO. 520414/2018 (FILED : KINGS COUNTY CLERK 12/28/2018 12:43 PM| NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 12/28/2018 24. During the erection of their foundation wall at the rear part of 157 Smith Street adjacent and abutting Plaintiff's property, Defendant penetrated the waterproof membrane on Plaintiff's wall by drilling in excess of 100 holes into Plaintiff's foundation wall. 25. This drilling was done without the notice to or the permission of the Plaintiff. 26. In addition, Defendant failed to seal the gap between the new foundation wall and Plaintiff's existing foundation wall. 27. As a result of Defendant's actions, water infiltrated and continues to infiltrate Plaintiff's building in the rear where Defendant erected its foundation wall and Plaintiff has sustained water damages in the rear of its building adjacent to where Defendant drilled into Plaintiff's wall. 28. Plaintiff's building is now damaged by the water infiltration and continues to sustain damages in an unknown sum due to the Defendant's failure to protect the Plaintiff's wall in violation of the New York City Building Code. AS AND FOR A FIRST CAUSE OF ACTION TRESPASS ON PLAINTIFF'S PROPERTY 29. Plaintiff repeats, reiterates, and realleges each and every allegation set forth in the "1" "28" paragraphs numbered to as if set forth fully herein. 30. Plaintiff has title to the property at 159 Smith Street, Brooklyn, New York. 31. Defendant had no permission from Plaintiff to enter, encumber, or perform construction work on Plaintiff's property. 5 of 19 FILED: KINGS COUNTY CLERK 05/09/2024 05:03 PM INDEX NO. 523330/2019 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 05/09/2024 KINGS COUNTY CLERK INDEX No. 520414/2018 |FILED : 12/28/2018 12:43 PI4 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 12/28/2018 32. Despite the fact that Plaintiff did not permit Defendant to enter Plaintiff's property, Defendant trespassed on Plaintiff's property by conducting construction, including, but not limited to, the intentional drilling of holes through Plaintiff's property. 33. Upon information and belief, Defendant intentionally drilled more than one hundred (100) holes into the property located at 159 Smith Street, Brooklyn, New York. 34. Upon information and belief, said drilling was done in connection with Defendant's Support and Excavation Plan which expressly includes a trespass on the Plaintiff Owner's property of a permanent nature. 35. Despite Defendant's notice from Plaintiff that this construction on Plaintiff's property was not permitted by Plaintiff and Defendant should cease and desist said construction immediately, Plaintiff continued to perform construction on Plaintiffs property. 36. Upon information and belief, Defendant's construction performed on Plaintiff's property located at 159 Smith Street, resulted in damages to Plaintiff. 37. As a result of the foregoing, Plaintiff is entitled to consequential damages, as a result of the dorementioned trespass of Defendant, in a sum to be determined by the Court as trier of fact. 6 of 19 FILED: KINGS COUNTY CLERK 05/09/2024 05:03 PM INDEX NO. 523330/2019 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 05/09/2024 INDEX NO. 520414/2018 E'ILED : KINGS COUNTY CLERK 12 /28 /2018 12 : 43 PM) NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 12/28/2018 AS AND FOR A SECOND CAUSE OF ACTION ENJOINING DEFENDANT FROM FURTHER CONSTRUCTION 38. Plaintiff repeats, reiterates, and realleges each and every allegation set forth in the "1" "37" paragraphs numbered to as if set forth fully herein. 39. Upon information and belief, the Defendant has proceeded with the construction work, specifically the excavation of the Site based upon the Construction Plans submitted to the New York City Department of Buildings (herein referred to as "DOB") in April 2017. 40. Upon information and belief, Defendant's Support of Excavation plans and drawings fail to provide for adequate protection of 159 Smith Street as they require the drilling of more than one hundred (100) holes through Plaintiff's property without any accounting for how same will impact the integrity of the structure located at 159 Smith Street. 41. Upon information and belief, Defendant's Support of excavation plans and drawings if implemented as prepared and submitted will present a danger to the health and safety of the future residents of 159 Smith Street. Defendants' 42. Upon information and belief, support of excavation plans and drawings, if implemented will compromise the structural integrity of 159 Smith Street. Defendants' 43. Upon information and belief, support of excavation plans and drawings if implemented as prepared and submitted will cause permanent damage to 159 Smith Street. 7 of 19 FILED: KINGS COUNTY CLERK 05/09/2024 05:03 PM INDEX NO. 523330/2019 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 05/09/2024 FILED : KINGS COUNTY CLERK 12 /28 /2018 12 INDEX NO. 520414/2018 : 43 Pli NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 12/28/2018 44. Upon information and belief, if Defendant is permitted to proceed with the excavation pursuant to their submitted plans, Plaintiff will be irreparably harmed. 45. Unless Defendant is enjoined from proceeding with the construction, specifically the excavation of the Site based upon the submitted plans, Plaintiff and the public at large will suffer irreparable injury. 46. That Plaintiff has no adequate remedy at law. 47. For the foregoing reasons, Plaintiff is entitled to a temporary restraining order, and temporary, preliminary, and permanent injunction restraining and enjoining Defendants as well as their agents, representatives, and employees from entering into 159 Smith Street, performing and continuing to perform demolition and construction/excavation without doing so in compliance with applicable law and without first obtaining valid permits from the DOB which valid permits shall be based upon appropriate Plans, in accordance with applicable laws and codes. AS AND FOR A THIRD CAUSE OF ACTION FOR NEGLIGENCE 48. Plaintiff repeats, reiterates, and realleges each and every allegation set forth in the "1" "47" paragraphs numbered to as if set forth fully herein. 49. Defendant häd a duty to Plaintiff to exercise reasonable care to protect the adjacent property owner and general public during construction on its property. 8 of 19 FILED: KINGS COUNTY CLERK 05/09/2024 05:03 PM INDEX NO. 523330/2019 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 05/09/2024 INDEX NO. 520414/2018 EŠLED : KINGS COUNTY CLERK : 4 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 12/28/2018 50. Both during and following Defendant's construction and/or demolition, Defendant breached its duty and obligations to the general public and abutting properties, including 159 Smith Street. 51. The Defendant's breaches and/or departures include, but are not limited to, failure to draft, prepare, and submit Plans and specifications for the Project that adequately protect the abutting property prior to commencing construction on 157 Smith Street. 52. Further, Defendant's breached the duty by failing to take the proper measures to adequately protect Plaintiff's building, failing to weatherproof the exposed façade of Plaintiff's building as required by the New York City Building Code, penetrating the waterproof membrane on Plaintiff's wall by drilling in excess of 100 holes into Plaintiff s foundation wall, and failing to seal the gap between the new foundation wall and Plaintiff's existing foundation wall. 53. Consequently, on or about November 14, 2018, water infiltrated and continues to infiltrate Plaintiff s building on the north side adjacent to 157 Smith Street at the exposed wall due to Defendant's failure to adequately protect Plaintiff's property as required by the New York City Building Code. 54. As a result of Defendant's breaches, water infiltrated and continues to infiltrate Plaintiff s building in the rear where Defendant erected its foundation wall and Plaintiff has sustained water damages in the rear of its building adjacent to where Defendant drilled into Plaintiff s wall. 9 of 19 FILED: KINGS COUNTY CLERK 05/09/2024 05:03 PM INDEX NO. 523330/2019 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 05/09/2024 FILED KINGS CLERK INDEX NO. 520414/2018 : COUNTY 12 /28 /2018 12 : 43 PM) NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 12/28/2018 55. Plaintiff's building is now damaged by the water infiltration and continues to sustain damages in an unknown sum due to the Defendant's failure to protect the Plaintiff s wall in violation of the New York City Building Code. 56. Defendant's breaches are uncured to date and they continue to act in violation of Plaintiff's rights, causing Plaintiff damage and risk of further irreparable harm. 57. Defendant's conduct to date in the drilling in excess of 100 holes in Plaintiff's property without authorization of Plaintiff, has substantially interfered with Plaintiff's rights to the use and occupancy of its property interests at 159 Smith Street. 58. Defendant's conduct to date in conducting construction on the Plaintiff's property without notice to Plaintiff or authorization of Plaintiff was unreasonable under all of the circumstances. 59. Defendant's conduct to date in conducting construction that impacts the structure of Plaintiff's property without taking necessary steps to protect the interest of the owners, future tenants, and occupants of the adjoining property from hazardous conditions resulting from its construction, has caused annoyance, discomfort, and inconvenience to Plaintiff, its members, future tenants, and occupants. 60. As a result of Defendant's illegal and intentional conduct, Plaintiff has been specially damaged in that such activities are hazardous to the life, health, and safety of, and interfere with the rights, comforts, and conveniences of, the future tenants, occupants, and invitees of 159 Smith Street, with a resultant depreciation in value of its property 10 of 19 FILED: KINGS COUNTY CLERK 05/09/2024 05:03 PM INDEX NO. 523330/2019 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 05/09/2024 FILED INDEX NO. 520414/2018 : KINGS COUNTY CLERK 12 : NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 12/28/2018 interests, in a sum in excess of the jurisdictional limits of this Court, to be determined by the trier of fact. 61. As a result of the foregoing, Plaintiff is entitled to consequential damages, as a result of the aforementioned negligence, in a sum to be determined by the Court as trier of fact. AS AND FOR A FOURTH CAUSE OF ACTION FOR PUNITIVE DAMAGES 62. Plaintiff repeats, reiterates, and realleges each and every allegation set forth in the "1" "61" paragraphs numbered to as if set forth fully herein. 63. Upon information and belief, the Defendant's conduct is indicative