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FILED: HERKIMER COUNTY CLERK 05/20/2024 10:04 AM INDEX NO. EF2024-111660
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/20/2024
STATE OFNEWYORK
COURT
SUPREME OFHERKIMER
COUNTY
Index No.:
PAMELAMULLERand JAY MULLER,
Plaintiffs designate
Plaintiffs, Herkimer County
As the Place of Trial
vs. The Basis of Venue is
Plaintiffs'
Residence
CRTLXXXII, LLC; and BARNEVELD
DONUTS,LLC SU MMON S
Defendants, Plaintiffs reside at
8939 N. Main Street
Poland, NY 13431
County of Herkimer
To the above-named Defendants:
You are hereby summoned, to answer the complaint in this action and to serve a copy of
your answer; or, if the complaint is not served with this summons, to serve a notice of appearance,
Plaintiffs'
on the Attorneys within twenty days after the service of this summons, exclusive of the
day of service (or within thirty days after the service is complete if this summons is not personally
delivered to you within the State of NewYork); and in case of your failure to appear or answer,
judgment will be taken against you by default for the relief demanded in the complaint.
Dated: May20, 2024
Yours, etc.
Eva Brindisi Pearlman, Esq
BRINDISI, MURAD& BRINDISI PEARLMAN,LLP
Attorneys for Plaintiff(s)
Office & P.O. Address
2713 Genesee Street
Utica, NewYork 13501
(315) 733-2396
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Defendants' Addresses:
CRTLXXXII, LLC
c/o CAFUAMANAGEMENT
COMPANY,LLC
280 Merrimack Street
Methuen, Massachusetts, 01844
BARNEVELD
DONUTS,LLC
8035 State Route 12
Barneveld, NewYorl
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STATE OFNEWYORK
SUPREME COURT OFHERKIMER
COUNTY
PAMELAMULLERand JAY MULLER,
Plaintiffs,
vs. COMPLAINT
Index No.:
CRTLXXXII, LLC; and BARNEVELDDONUTS,LLC
Defendants.
The Plaintiffs, as and for a Complaint, by and through their attorneys, Brindisi, Murad &
Brindisi Pearlman, LLP, respectfully show to this Court and allege as follows:
1. At all the times herein mentioned, the Plaintiffs were and still are residents of the
Village of Poland, County of Herkimer and State of NewYork.
2. Upon information and belief, and at all the times herein mentioned, the
Defendant, CRTLXXXII, LLC, was and still is a domestic limited liability company, organized
and existing under the laws of New York State, with its principal offices located at c/o CAFUA
MANAGEMENT,
located at 280 Merrimack Street, Methuen, Massachusetts, 01844.
3. Upon information and belief, and at all the times herein mentioned, the
Defendant, BARNEVELD
DONUTS,LLC, was and still is a domestic limited liability company,
organized and existing under the laws of New York State, with its principal offices located at
8035 State Route 12, Barneveld, NewYork.
4. Upon information and belief, the damages sought exceed the jurisdiction of all
lower courts which otherwise would have jurisdiction.
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ASANDFORA FIRST, SEPARATEANDDISTINCT CAUSEOFACTION,
THEPLAINTIFFS SETFORTH ASFOLLOWS:
5. On or about January 4, 2024, Plaintiff filed a Summonsand Complaint with the
Herkimer County Clerk's office against CAFUAMANAGEMENT
COMPANY,LLC, and
MAPLEDALENORTH, LLC, under Index number EF2024-111183, in connection with the
subject accident that occurred on June 3, 2021, at approximately 8:45 a.m., while the Plaintiff,
PAMELAMULLER, was a customer at the Dunkin Donuts located at 7995 State Road 12,
Barneveld, County of Oneida and State of NewYork.
6. After the commencement of the said action, Plaintiff has learned the identity of
additional, upon information and belief, proper parties to the aforesaid litigation, to wit:
Defendant, CRT LXXXII, LLC, as the owner of the premises, and Defendant, BARNEVELD
DONUTS,LLC, as the tenant/franchisee of the premises where the subject incident occurred.
7. Upon information and belief, the Defendant, CRT LXXXII, LLC, on or about
June 3, 2021, was the owner of certain real property located and situated at 7995 State Road 12,
in the Hamlet of Barneveld, County of Oneida and State of NewYork, which property contained
a building with a business known as Dunkin Donuts.
8. Upon information and belief, the Defendant, CRT LXXXII, LLC, on or about
June 3, 2021, was the operator of a Dunkin Donuts franchise located and situated at 7995 State
Road 12, Barneveld, NY 13304.
9. Upon information and belief, and at all times herein mentioned, the Defendant,
CRTLXXXII, LLC, was in possession and control of the premises located and situated at 7995
State Road 12, Barneveld, NY 13304, in the Hamlet of Barneveld, County of Oneida and State of
NewYork, which building contained a business known as Dunkin Donuts.
10. Upon information and belief, and at all times herein mentioned, the Defendant,
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CRTLXXXII, LLC, maintained certain real property located and situated at 7995 State Road 12,
Barneveld NY, 13304, in the Hamlet of Barneveld, County of Oneida and State of New York,
which building contained a business known as Dunkin Donuts.
11. Upon information and belief, and at all times mentioned herein, the Defendant,
CRT LXXXII, LLC, entered into an Agreement with the Co-Defendant, BARNEVELD
DONUTS,LLC, to lease certain real property located and situated at 7995 State Road 12, in the
Hamlet of Barneveld, County of Oneida and State of NewYork, for the purpose of conducting a
business known as Dunkin Donuts.
12. Upon information and belief, and at all times mentioned herein, the Defendant,
CRT LXXXII, LLC, entered into an Agreement with CAFUAMANAGEMENT
COMPANY,
LLC, to lease certain real property located and situated at 7995 State Road 12, in the Hamlet of
Barneveld, County of Oneida and State of New York, for the purpose of conducting a business
known as Dunkin Donuts.
13. Upon information and belief, and at all times mentioned herein, CAFUA
MANAGEMENT
COMPANY,LLC, entered into an Agreement with Defendant, BARNEVELD
DONUTS,LLC, to lease certain real property located and situated at 7995 State Road 12, in the
Hamlet of Barneveld, County of Oneida and State of NewYork, for the purpose of conducting a
business known as Dunkin Donuts.
14. Upon information and belief, and at all times mentioned herein, the Defendant,
BARNEVELD
DONUTS,LLC, was the tenant of certain real property located and situated at
7995 State Road 12, in the Hamlet of Barneveld, County of Oneida and State of NewYork, for
the purpose of conducting a business known as Dunkin Donuts.
15. Upon information and belief, and at all times mentioned herein, the Defendant,
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BARNEVELD
DONUTS,LLC, was the franchisee for the purpose of conducting a business
known as Dunkin Donuts located and situated at 7995 State Road 12, in the Hamlet of
Barneveld, County of Oneida and State of NewYork.
16. Upon information and belief, the Defendant, BARNEVELD
DONUTS,LLC, on
or about June 3, 2021, was the operator of a Dunkin Donuts franchise located and situated at
7995 State Road 12, Barneveld, NY 13304.
17. Upon information and belief, and at all times herein mentioned, the Defendant,
BARNEVELDDONUTS,LLC, was in possession and control of the premises located and
situated at 7995 State Road 12, Barneveld NY 13304, in the Hamlet of Barneveld, County of
Oneida and State of New York, which property contained a building with a business known as
Dunkin Donuts.
18. Upon information and belief, and at all times herein mentioned, the Defendant,
BARNEVELD
DONUTS,LLC, maintained certain real property located and situated at 7995
State Road 12, in the Hamlet of Barneveld, County of Oneida and State of New York, which
property contained a building with a business known as Dunkin Donuts.
19. Prior to the times herein mentioned, the Defendants, CRT LXXXII, LLC and/or
BARNEVELD
DONUTS,LLC, its agents, servants, representatives and/or employees, failed to
install a slip resistant mat or rug in the entry way of the aforesaid premises, or post warning signs
to advise customers of the slippery surface condition of the floor in the area where the Plaintiff
slipped and fell, so as to protect their customers from slipping and falling, thereby creating a
dangerous and hazardous condition for persons lawfully at said premises. Further, the
Defendants failed to clean or replace the existing rug that was in the vestibule that had excess
moisture/water that had accumulated from the inclement weather, so as to protect their customers
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from slipping and falling, thereby creating a dangerous and hazardous condition for persons
lawfully at said premises.
20. Prior to the times herein mentioned, the Defendants, CRT LXXXII, LLC and/or
BARNEVELD
DONUTS,LLC, its agents, servants, representatives and/or employees, created
the dangerous and hazardous condition at the premises; had actual knowledge of the dangerous
and hazardous condition that existed at the premises; the same was so visible and apparent and
existed for a long enough period of time that the Defendants should have been aware thereof
upon reasonable inspection of same, thereby placing the Defendants on constructive notice of
said condition; and/or the Defendants had actual knowledge of a recurring dangerous condition
on the premises and failed to remedy it, and, as such, is charged with constructive notice of
each specific reoccurrence of the condition, including, the subject reoccurrence that took place
on June 3, 2021.
21. At all times relevant hereto, the Defendants, CRT LXXXII, LLC and/or
BARNEVELD
DONUTS,LLC, its agents, servants, representatives and/or employees, had a
nondelegable duty to maintain the entranceway to the property, which was used for ingress and
egress by its customers, in a reasonably safe, clean and serviceable condition for the use of
persons being in and about the premises of the building and area.
22. At all times relevant hereto, the Defendants, CRT LXXXII, LLC and/or
BARNEVELD
DONUTS,LLC, its agents, servants, representatives and/or employees, failed to
exercise reasonable care in the performance of their duties to maintain the premises in a
reasonably safe, clean and serviceable manner and negligently and wrongfully permitted and
allowed the entryway of the store to be in a defective condition and allowed the condition to
become a hazard, a danger, and a trap to persons entering the store, thereby launching a force or
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Defendants'
instrument of harm, and/or the actions advanced to such a point as to have launched
a force or instrument of harm, or stopped where inaction is at most a refusal to become an
instrument for good, and/or created or exacerbated a harmful condition, thereby launching a
force or instrument of harm. In addition, and in the alternative, the defective condition and
hazardous rug or carpeting that existed in the vestibule was inherently dangerous in itself and
was a trap, hazard and a danger to persons using said store entryway.
23. At all times relevant hereto, the Plaintiff detrimentally relied on the continued
Defendants'
performance of the and/or others duties to perform maintenance services at the
premises; the Defendants induced detrimental reliance on their continued performance and the
Defendants failure to perform those obligations positively or actively worked an injury upon the
Plaintiff herein.
24. At all times relevant hereto, the Defendants, CRT LXXXII, LLC and/or
BARNEVELD
DONUTS,LLC, its agents, servants, representatives and/or employees, displaced
another parties duty to maintain the premises in a safe and clean condition, and/or the
Defendant's obligation to provide safety and/or maintenance services was so comprehensive that
their duty extended to noncontracting individuals reasonably within the zone and contemplation
of the intended safety services, including, persons lawfully on the premises such as the Plaintiff
herein.
25. On or about the 3rd
day of June, 2021, at approximately 8:45 a.m., the Plaintiff,
PAMELAMULLER, was lawfully at the premises of 7995 State Road 12, in the Hamlet of
Barneveld, County of Oneida and State of New York, as a customer, and as she was walking
towards, and attempting to enter, the inner doorway that was located within the store's vestibule,
in a prudent and careful manner, she was caused to slip and fall on the slippery floor of said
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premises, resulting in Plaintiff losing her balance and falling to the floor, and causing her to
sustain serious personal injuries and damages as hereinafter alleged.
26. The accident, damages and injuries to the Plaintiff, PAMELAMULLER,
resulting therefrom, were caused solely by the negligence of the Defendants, and without any
comparative negligence on the part of the Plaintiff contributing thereto.
27. The joint and/or several negligence of the Defendants, CRTLXXXII, LLC and/or
BARNEVELDDONUTS,LLC, by and through its agents, servants, representatives and/or
employees, among other things, consisted of the following, to wit: in failing to keep the premises
in its possession and control in a state of good maintenance; in failing to maintain the premises in
its possession and control in a safe and good condition; in maintaining the premises in its
possession and control in an unsafe and improper condition; in failing to install a non-slip mat or
rug that could absorb rainwater from everyday footwear in the normal direction of foot traffic
located on the store's premises; in failing to install, properly place and/or maintain a non-slip and
water absorbent mat or rug that could absorb water that may accumulate at the door or
entranceway into the store, in the area where the Plaintiff slipped and fell; in failing to provide
proper traction to aid in preventing a slip and fall accident on the premises; in improperly placing
and/or failure to use floor mats during inclement weather in the area where the subject incident
occurred; in failing to discover the dangerous and hazardous condition which existed at the
premises in its control and possession; in failing to inspect the store's entrance/exit for which
they were responsible for maintaining so as to discover the true condition thereof; in failing to
regularly inspect the mats or rugs that existed on the premises for the buildup of contaminants,
excess water, and/or deterioration that could lead to the creation of slip and fall hazards on the
premises; in failing to observe the wear and tear and/or excess moisture that had accumulated on
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the rug or carpet in the vestibule of the entryway, thereby posing a trip hazard to persons at the
premises; in failing to replace the rug or carpet with obvious wear and tear and/or excess
moisture that had accumulated in the vestibule of the entryway, thereby posing a trip hazard to
persons at the premises; in failing to warn the Plaintiff, and others, of the dangerous and
hazardous condition which existed at the premises; in failing to post warning signs, orange
cones, wet floor signs, or otherwise denote the existence of the dangerous and hazardous
condition; in failing to make the premises safe for persons lawfully thereat; in failing to discover
the dangerous and hazardous condition which existed at the premises; in exacerbating or creating
a dangerous and hazardous condition upon the premises; in allowing Plaintiff to detrimentally
Defendants'
rely on the continued performance of duty to perform its maintenance of the
premises; in allowing and permitting an ongoing and recurring dangerous condition and hazard
to exist on its premises, which was routinely left unaddressed; in allowing and permitting an
ongoing and recurring dangerous condition near the exit/entranceway; in failing to remedy a
chronic dangerous condition that existed on numerous occasions in the past; in failing to place a
mat or rug to absorb excess water during periods of inclement weather recognizing that it was an
environmental hazard that could contribute to a trip and fall; in failing to maintain a clean and
safe environment so that persons would not fall and become injured; in violating the following
sections of the New York State Property Maintenance Code §304.1, §305.1, and §305.3; in
failing to take extra precautions with its mats or rugs, so that persons wouldn't slip and fall; in
failing to provide a mat or rug with a non-slip pad underneath or a skid backing so that persons
wouldn't slip and fall; in failing to install or specially design a non-skid mat or rug in the
entranceway to the premises; in failing to fix or secure a mat or rug in the entranceway to the
premises to the floor beneath in the area where the subject accident occurred; in failing to design,
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provide or use a rug or carpet in the entranceway to the premises with a slip-resistant surface on
both top and bottom sides; in failing to design, provide or use a rug or carpet in the entranceway
to the premises with beveled edges, flat edges or similar design; in failing to design, provide or
use a rug or carpet in the entranceway to the premises with slots or similar design to help
promote drainage and prevent accumulation of water and/or grease; in failing to take every or, in
fact any steps whatsoever to protect the Plaintiff from injury at the premises; and the Defendants
were otherwise negligent.
28. Solely by reason of the recklessness, carelessness and negligence of the
Defendants, through their agents, servants, representatives and/or employees, and as a direct and
proximate cause thereof, the Plaintiff, PAMELAMULLER,was injured internally, externally
and permanently in and about her head, body, limbs and nervous system, so that she became
sick, sore, lame and disabled and suffered severe injuries in and about her body and
complications resulting therefrom; that the injuries and the results and consequences thereof,
upon information and belief, are permanent in nature; that she has received, and will receive,
considerable medical care and attention for her injuries and has incurred, and will incur,
considerable bills for said care and attention; that she has experienced great physical pain and
mental anguish.
29. Upon information and belief, the limitations set forth in Section 1601 of the
CPLRdo not apply and the Complaint states a cause of action, which, if alleged and proved,
would be an exception in accordance with CPLR§1602(2)(iv).
30. As a result of said injuries, the Plaintiff has received, and will in the future
continue to receive, medical and hospital care and treatment provided by and through the United
States of America. The Plaintiff, for the sole use and benefit of the United States of America,
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under the provisions of 42 U.S.C. §§2651-2653 et seq. and 10 U.S.C. §1095, and with its express
consent, asserts a claim for the cost of said medical and hospital care and treatment and the value
of future care.
31. By reason of the premises, the Plaintiff, PAMELAMULLER,has been damaged
in an amount to be determined by a jury upon the trial of the issues herein.
ASANDFORA SECOND,SEPARATEANDDISTINCTCAUSEOFACTION,
THEPLAINTIFFS SETFORTHASFOLLOWS:
32. At all the times mentioned herein the Plaintiff, JAY MULLER,was and still is the
husband of the Plaintiff, PAMELAMULLER, and as such, lived and cohabited with this
Plaintiff in their marital dwelling in Booneville, NewYork.
33. Prior to the times, the Plaintiff's said wife was in good health and fully capable of
performing, and did perform, all the usual and customary duties of a wife in and about their
marital household.
34. As a result of the negligence of the Defendants, as hereinbefore set forth, the
Plaintiff's said wife was injured, bruised and wounded so that she became sick, sore, lame and
disabled, and so remains; the Plaintiff, JAY MULLER,has been deprived of the services of his
said wife; and his comfort and happiness in her society and companionship have been impaired.
35. Upon information and belief, the limitations set forth in Section 1601 of the
CPLRdo not apply and this Complaint states a cause of action, which if alleged and proved,
would be an exception in accordance with CPLR§1602(2)(iv).
36. By reason of the foregoing, the Plaintiff, JAY MULLER,has been damaged and
seeks judgment against the Defendants, in an amount to be determined by a jury upon the trial of
the issues herein.
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WHEREFORE,the Plaintiff, PAMELAMULLER, demands judgment against the
Defendants, CRT LXXXII, LLC and/or BARNEVELD
DONUTS,LLC, in an amount to be
determined by a jury upon a trial of the issues herein on the First Cause of Action; and the
Plaintiff, JAY MULLER,demandsjudgment against the Defendants, CRTLXXXII, LLC and/or
BARNEVELD
DONUTS,LLC, in an amount to be determined by a jury upon a trial of the
issues herein on the Second Cause of Action; together with the costs and disbursements of this
action.
Dated: May20, 2024.
Yours, etc.
EVABRINDISI PEARLMAN,ESQ.
BRINDISI, MURAD& BRINDISI PEARLMAN,LLP
Preview
FILED: HERKIMER COUNTY CLERK 05/20/2024 10:04 AM INDEX NO. EF2024-111660 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/20/2024 STATE OFNEWYORK COURT SUPREME OFHERKIMER COUNTY Index No.: PAMELAMULLERand JAY MULLER, Plaintiffs designate Plaintiffs, Herkimer County As the Place of Trial vs. The Basis of Venue is Plaintiffs' Residence CRTLXXXII, LLC; and BARNEVELD DONUTS,LLC SU MMON S Defendants, Plaintiffs reside at 8939 N. Main Street Poland, NY 13431 County of Herkimer To the above-named Defendants: You are hereby summoned, to answer the complaint in this action and to serve a copy of your answer; or, if the complaint is not served with this summons, to serve a notice of appearance, Plaintiffs' on the Attorneys within twenty days after the service of this summons, exclusive of the day of service (or within thirty days after the service is complete if this summons is not personally delivered to you within the State of NewYork); and in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint. Dated: May20, 2024 Yours, etc. Eva Brindisi Pearlman, Esq BRINDISI, MURAD& BRINDISI PEARLMAN,LLP Attorneys for Plaintiff(s) Office & P.O. Address 2713 Genesee Street Utica, NewYork 13501 (315) 733-2396 1 of 13 FILED: HERKIMER COUNTY CLERK 05/20/2024 10:04 AM INDEX NO. EF2024-111660 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/20/2024 Defendants' Addresses: CRTLXXXII, LLC c/o CAFUAMANAGEMENT COMPANY,LLC 280 Merrimack Street Methuen, Massachusetts, 01844 BARNEVELD DONUTS,LLC 8035 State Route 12 Barneveld, NewYorl 2 of 13 FILED: HERKIMER COUNTY CLERK 05/20/2024 10:04 AM INDEX NO. EF2024-111660 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/20/2024 STATE OFNEWYORK SUPREME COURT OFHERKIMER COUNTY PAMELAMULLERand JAY MULLER, Plaintiffs, vs. COMPLAINT Index No.: CRTLXXXII, LLC; and BARNEVELDDONUTS,LLC Defendants. The Plaintiffs, as and for a Complaint, by and through their attorneys, Brindisi, Murad & Brindisi Pearlman, LLP, respectfully show to this Court and allege as follows: 1. At all the times herein mentioned, the Plaintiffs were and still are residents of the Village of Poland, County of Herkimer and State of NewYork. 2. Upon information and belief, and at all the times herein mentioned, the Defendant, CRTLXXXII, LLC, was and still is a domestic limited liability company, organized and existing under the laws of New York State, with its principal offices located at c/o CAFUA MANAGEMENT, located at 280 Merrimack Street, Methuen, Massachusetts, 01844. 3. Upon information and belief, and at all the times herein mentioned, the Defendant, BARNEVELD DONUTS,LLC, was and still is a domestic limited liability company, organized and existing under the laws of New York State, with its principal offices located at 8035 State Route 12, Barneveld, NewYork. 4. Upon information and belief, the damages sought exceed the jurisdiction of all lower courts which otherwise would have jurisdiction. 1 3 of 13 FILED: HERKIMER COUNTY CLERK 05/20/2024 10:04 AM INDEX NO. EF2024-111660 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/20/2024 ASANDFORA FIRST, SEPARATEANDDISTINCT CAUSEOFACTION, THEPLAINTIFFS SETFORTH ASFOLLOWS: 5. On or about January 4, 2024, Plaintiff filed a Summonsand Complaint with the Herkimer County Clerk's office against CAFUAMANAGEMENT COMPANY,LLC, and MAPLEDALENORTH, LLC, under Index number EF2024-111183, in connection with the subject accident that occurred on June 3, 2021, at approximately 8:45 a.m., while the Plaintiff, PAMELAMULLER, was a customer at the Dunkin Donuts located at 7995 State Road 12, Barneveld, County of Oneida and State of NewYork. 6. After the commencement of the said action, Plaintiff has learned the identity of additional, upon information and belief, proper parties to the aforesaid litigation, to wit: Defendant, CRT LXXXII, LLC, as the owner of the premises, and Defendant, BARNEVELD DONUTS,LLC, as the tenant/franchisee of the premises where the subject incident occurred. 7. Upon information and belief, the Defendant, CRT LXXXII, LLC, on or about June 3, 2021, was the owner of certain real property located and situated at 7995 State Road 12, in the Hamlet of Barneveld, County of Oneida and State of NewYork, which property contained a building with a business known as Dunkin Donuts. 8. Upon information and belief, the Defendant, CRT LXXXII, LLC, on or about June 3, 2021, was the operator of a Dunkin Donuts franchise located and situated at 7995 State Road 12, Barneveld, NY 13304. 9. Upon information and belief, and at all times herein mentioned, the Defendant, CRTLXXXII, LLC, was in possession and control of the premises located and situated at 7995 State Road 12, Barneveld, NY 13304, in the Hamlet of Barneveld, County of Oneida and State of NewYork, which building contained a business known as Dunkin Donuts. 10. Upon information and belief, and at all times herein mentioned, the Defendant, 2 4 of 13 FILED: HERKIMER COUNTY CLERK 05/20/2024 10:04 AM INDEX NO. EF2024-111660 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/20/2024 CRTLXXXII, LLC, maintained certain real property located and situated at 7995 State Road 12, Barneveld NY, 13304, in the Hamlet of Barneveld, County of Oneida and State of New York, which building contained a business known as Dunkin Donuts. 11. Upon information and belief, and at all times mentioned herein, the Defendant, CRT LXXXII, LLC, entered into an Agreement with the Co-Defendant, BARNEVELD DONUTS,LLC, to lease certain real property located and situated at 7995 State Road 12, in the Hamlet of Barneveld, County of Oneida and State of NewYork, for the purpose of conducting a business known as Dunkin Donuts. 12. Upon information and belief, and at all times mentioned herein, the Defendant, CRT LXXXII, LLC, entered into an Agreement with CAFUAMANAGEMENT COMPANY, LLC, to lease certain real property located and situated at 7995 State Road 12, in the Hamlet of Barneveld, County of Oneida and State of New York, for the purpose of conducting a business known as Dunkin Donuts. 13. Upon information and belief, and at all times mentioned herein, CAFUA MANAGEMENT COMPANY,LLC, entered into an Agreement with Defendant, BARNEVELD DONUTS,LLC, to lease certain real property located and situated at 7995 State Road 12, in the Hamlet of Barneveld, County of Oneida and State of NewYork, for the purpose of conducting a business known as Dunkin Donuts. 14. Upon information and belief, and at all times mentioned herein, the Defendant, BARNEVELD DONUTS,LLC, was the tenant of certain real property located and situated at 7995 State Road 12, in the Hamlet of Barneveld, County of Oneida and State of NewYork, for the purpose of conducting a business known as Dunkin Donuts. 15. Upon information and belief, and at all times mentioned herein, the Defendant, 3 5 of 13 FILED: HERKIMER COUNTY CLERK 05/20/2024 10:04 AM INDEX NO. EF2024-111660 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/20/2024 BARNEVELD DONUTS,LLC, was the franchisee for the purpose of conducting a business known as Dunkin Donuts located and situated at 7995 State Road 12, in the Hamlet of Barneveld, County of Oneida and State of NewYork. 16. Upon information and belief, the Defendant, BARNEVELD DONUTS,LLC, on or about June 3, 2021, was the operator of a Dunkin Donuts franchise located and situated at 7995 State Road 12, Barneveld, NY 13304. 17. Upon information and belief, and at all times herein mentioned, the Defendant, BARNEVELDDONUTS,LLC, was in possession and control of the premises located and situated at 7995 State Road 12, Barneveld NY 13304, in the Hamlet of Barneveld, County of Oneida and State of New York, which property contained a building with a business known as Dunkin Donuts. 18. Upon information and belief, and at all times herein mentioned, the Defendant, BARNEVELD DONUTS,LLC, maintained certain real property located and situated at 7995 State Road 12, in the Hamlet of Barneveld, County of Oneida and State of New York, which property contained a building with a business known as Dunkin Donuts. 19. Prior to the times herein mentioned, the Defendants, CRT LXXXII, LLC and/or BARNEVELD DONUTS,LLC, its agents, servants, representatives and/or employees, failed to install a slip resistant mat or rug in the entry way of the aforesaid premises, or post warning signs to advise customers of the slippery surface condition of the floor in the area where the Plaintiff slipped and fell, so as to protect their customers from slipping and falling, thereby creating a dangerous and hazardous condition for persons lawfully at said premises. Further, the Defendants failed to clean or replace the existing rug that was in the vestibule that had excess moisture/water that had accumulated from the inclement weather, so as to protect their customers 4 6 of 13 FILED: HERKIMER COUNTY CLERK 05/20/2024 10:04 AM INDEX NO. EF2024-111660 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/20/2024 from slipping and falling, thereby creating a dangerous and hazardous condition for persons lawfully at said premises. 20. Prior to the times herein mentioned, the Defendants, CRT LXXXII, LLC and/or BARNEVELD DONUTS,LLC, its agents, servants, representatives and/or employees, created the dangerous and hazardous condition at the premises; had actual knowledge of the dangerous and hazardous condition that existed at the premises; the same was so visible and apparent and existed for a long enough period of time that the Defendants should have been aware thereof upon reasonable inspection of same, thereby placing the Defendants on constructive notice of said condition; and/or the Defendants had actual knowledge of a recurring dangerous condition on the premises and failed to remedy it, and, as such, is charged with constructive notice of each specific reoccurrence of the condition, including, the subject reoccurrence that took place on June 3, 2021. 21. At all times relevant hereto, the Defendants, CRT LXXXII, LLC and/or BARNEVELD DONUTS,LLC, its agents, servants, representatives and/or employees, had a nondelegable duty to maintain the entranceway to the property, which was used for ingress and egress by its customers, in a reasonably safe, clean and serviceable condition for the use of persons being in and about the premises of the building and area. 22. At all times relevant hereto, the Defendants, CRT LXXXII, LLC and/or BARNEVELD DONUTS,LLC, its agents, servants, representatives and/or employees, failed to exercise reasonable care in the performance of their duties to maintain the premises in a reasonably safe, clean and serviceable manner and negligently and wrongfully permitted and allowed the entryway of the store to be in a defective condition and allowed the condition to become a hazard, a danger, and a trap to persons entering the store, thereby launching a force or 5 7 of 13 FILED: HERKIMER COUNTY CLERK 05/20/2024 10:04 AM INDEX NO. EF2024-111660 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/20/2024 Defendants' instrument of harm, and/or the actions advanced to such a point as to have launched a force or instrument of harm, or stopped where inaction is at most a refusal to become an instrument for good, and/or created or exacerbated a harmful condition, thereby launching a force or instrument of harm. In addition, and in the alternative, the defective condition and hazardous rug or carpeting that existed in the vestibule was inherently dangerous in itself and was a trap, hazard and a danger to persons using said store entryway. 23. At all times relevant hereto, the Plaintiff detrimentally relied on the continued Defendants' performance of the and/or others duties to perform maintenance services at the premises; the Defendants induced detrimental reliance on their continued performance and the Defendants failure to perform those obligations positively or actively worked an injury upon the Plaintiff herein. 24. At all times relevant hereto, the Defendants, CRT LXXXII, LLC and/or BARNEVELD DONUTS,LLC, its agents, servants, representatives and/or employees, displaced another parties duty to maintain the premises in a safe and clean condition, and/or the Defendant's obligation to provide safety and/or maintenance services was so comprehensive that their duty extended to noncontracting individuals reasonably within the zone and contemplation of the intended safety services, including, persons lawfully on the premises such as the Plaintiff herein. 25. On or about the 3rd day of June, 2021, at approximately 8:45 a.m., the Plaintiff, PAMELAMULLER, was lawfully at the premises of 7995 State Road 12, in the Hamlet of Barneveld, County of Oneida and State of New York, as a customer, and as she was walking towards, and attempting to enter, the inner doorway that was located within the store's vestibule, in a prudent and careful manner, she was caused to slip and fall on the slippery floor of said 6 8 of 13 FILED: HERKIMER COUNTY CLERK 05/20/2024 10:04 AM INDEX NO. EF2024-111660 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/20/2024 premises, resulting in Plaintiff losing her balance and falling to the floor, and causing her to sustain serious personal injuries and damages as hereinafter alleged. 26. The accident, damages and injuries to the Plaintiff, PAMELAMULLER, resulting therefrom, were caused solely by the negligence of the Defendants, and without any comparative negligence on the part of the Plaintiff contributing thereto. 27. The joint and/or several negligence of the Defendants, CRTLXXXII, LLC and/or BARNEVELDDONUTS,LLC, by and through its agents, servants, representatives and/or employees, among other things, consisted of the following, to wit: in failing to keep the premises in its possession and control in a state of good maintenance; in failing to maintain the premises in its possession and control in a safe and good condition; in maintaining the premises in its possession and control in an unsafe and improper condition; in failing to install a non-slip mat or rug that could absorb rainwater from everyday footwear in the normal direction of foot traffic located on the store's premises; in failing to install, properly place and/or maintain a non-slip and water absorbent mat or rug that could absorb water that may accumulate at the door or entranceway into the store, in the area where the Plaintiff slipped and fell; in failing to provide proper traction to aid in preventing a slip and fall accident on the premises; in improperly placing and/or failure to use floor mats during inclement weather in the area where the subject incident occurred; in failing to discover the dangerous and hazardous condition which existed at the premises in its control and possession; in failing to inspect the store's entrance/exit for which they were responsible for maintaining so as to discover the true condition thereof; in failing to regularly inspect the mats or rugs that existed on the premises for the buildup of contaminants, excess water, and/or deterioration that could lead to the creation of slip and fall hazards on the premises; in failing to observe the wear and tear and/or excess moisture that had accumulated on 7 9 of 13 FILED: HERKIMER COUNTY CLERK 05/20/2024 10:04 AM INDEX NO. EF2024-111660 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/20/2024 the rug or carpet in the vestibule of the entryway, thereby posing a trip hazard to persons at the premises; in failing to replace the rug or carpet with obvious wear and tear and/or excess moisture that had accumulated in the vestibule of the entryway, thereby posing a trip hazard to persons at the premises; in failing to warn the Plaintiff, and others, of the dangerous and hazardous condition which existed at the premises; in failing to post warning signs, orange cones, wet floor signs, or otherwise denote the existence of the dangerous and hazardous condition; in failing to make the premises safe for persons lawfully thereat; in failing to discover the dangerous and hazardous condition which existed at the premises; in exacerbating or creating a dangerous and hazardous condition upon the premises; in allowing Plaintiff to detrimentally Defendants' rely on the continued performance of duty to perform its maintenance of the premises; in allowing and permitting an ongoing and recurring dangerous condition and hazard to exist on its premises, which was routinely left unaddressed; in allowing and permitting an ongoing and recurring dangerous condition near the exit/entranceway; in failing to remedy a chronic dangerous condition that existed on numerous occasions in the past; in failing to place a mat or rug to absorb excess water during periods of inclement weather recognizing that it was an environmental hazard that could contribute to a trip and fall; in failing to maintain a clean and safe environment so that persons would not fall and become injured; in violating the following sections of the New York State Property Maintenance Code §304.1, §305.1, and §305.3; in failing to take extra precautions with its mats or rugs, so that persons wouldn't slip and fall; in failing to provide a mat or rug with a non-slip pad underneath or a skid backing so that persons wouldn't slip and fall; in failing to install or specially design a non-skid mat or rug in the entranceway to the premises; in failing to fix or secure a mat or rug in the entranceway to the premises to the floor beneath in the area where the subject accident occurred; in failing to design, 8 10 of 13 FILED: HERKIMER COUNTY CLERK 05/20/2024 10:04 AM INDEX NO. EF2024-111660 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/20/2024 provide or use a rug or carpet in the entranceway to the premises with a slip-resistant surface on both top and bottom sides; in failing to design, provide or use a rug or carpet in the entranceway to the premises with beveled edges, flat edges or similar design; in failing to design, provide or use a rug or carpet in the entranceway to the premises with slots or similar design to help promote drainage and prevent accumulation of water and/or grease; in failing to take every or, in fact any steps whatsoever to protect the Plaintiff from injury at the premises; and the Defendants were otherwise negligent. 28. Solely by reason of the recklessness, carelessness and negligence of the Defendants, through their agents, servants, representatives and/or employees, and as a direct and proximate cause thereof, the Plaintiff, PAMELAMULLER,was injured internally, externally and permanently in and about her head, body, limbs and nervous system, so that she became sick, sore, lame and disabled and suffered severe injuries in and about her body and complications resulting therefrom; that the injuries and the results and consequences thereof, upon information and belief, are permanent in nature; that she has received, and will receive, considerable medical care and attention for her injuries and has incurred, and will incur, considerable bills for said care and attention; that she has experienced great physical pain and mental anguish. 29. Upon information and belief, the limitations set forth in Section 1601 of the CPLRdo not apply and the Complaint states a cause of action, which, if alleged and proved, would be an exception in accordance with CPLR§1602(2)(iv). 30. As a result of said injuries, the Plaintiff has received, and will in the future continue to receive, medical and hospital care and treatment provided by and through the United States of America. The Plaintiff, for the sole use and benefit of the United States of America, 9 11 of 13 FILED: HERKIMER COUNTY CLERK 05/20/2024 10:04 AM INDEX NO. EF2024-111660 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/20/2024 under the provisions of 42 U.S.C. §§2651-2653 et seq. and 10 U.S.C. §1095, and with its express consent, asserts a claim for the cost of said medical and hospital care and treatment and the value of future care. 31. By reason of the premises, the Plaintiff, PAMELAMULLER,has been damaged in an amount to be determined by a jury upon the trial of the issues herein. ASANDFORA SECOND,SEPARATEANDDISTINCTCAUSEOFACTION, THEPLAINTIFFS SETFORTHASFOLLOWS: 32. At all the times mentioned herein the Plaintiff, JAY MULLER,was and still is the husband of the Plaintiff, PAMELAMULLER, and as such, lived and cohabited with this Plaintiff in their marital dwelling in Booneville, NewYork. 33. Prior to the times, the Plaintiff's said wife was in good health and fully capable of performing, and did perform, all the usual and customary duties of a wife in and about their marital household. 34. As a result of the negligence of the Defendants, as hereinbefore set forth, the Plaintiff's said wife was injured, bruised and wounded so that she became sick, sore, lame and disabled, and so remains; the Plaintiff, JAY MULLER,has been deprived of the services of his said wife; and his comfort and happiness in her society and companionship have been impaired. 35. Upon information and belief, the limitations set forth in Section 1601 of the CPLRdo not apply and this Complaint states a cause of action, which if alleged and proved, would be an exception in accordance with CPLR§1602(2)(iv). 36. By reason of the foregoing, the Plaintiff, JAY MULLER,has been damaged and seeks judgment against the Defendants, in an amount to be determined by a jury upon the trial of the issues herein. 10 12 of 13 FILED: HERKIMER COUNTY CLERK 05/20/2024 10:04 AM INDEX NO. EF2024-111660 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/20/2024 WHEREFORE,the Plaintiff, PAMELAMULLER, demands judgment against the Defendants, CRT LXXXII, LLC and/or BARNEVELD DONUTS,LLC, in an amount to be determined by a jury upon a trial of the issues herein on the First Cause of Action; and the Plaintiff, JAY MULLER,demandsjudgment against the Defendants, CRTLXXXII, LLC and/or BARNEVELD DONUTS,LLC, in an amount to be determined by a jury upon a trial of the issues herein on the Second Cause of Action; together with the costs and disbursements of this action. Dated: May20, 2024. Yours, etc. EVABRINDISI PEARLMAN,ESQ. BRINDISI, MURAD& BRINDISI PEARLMAN,LLP