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(FILED: ONONDAGA COUNTY CLERK 0271772015 03:16 PM INDEX NO. 2015EF725
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/17/2015
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ONONDAGA
SUMMONS
NIAGARA MOHAWK POWER CORPORATION d/b/a
NATIONAL GRID Index No.
Plaintiff, Filed on:
-against- The basis of venue
designated above is that the
JOSEPH J. LANE CONST., INC., Defendant has a principal
place of business in the
Defendant(s). County of Onondaga.
Plaintiff's Address: 300 Erie Boulevard West
Syracuse, NY 13202
Defendant’s Address: 200 Terminal Road
Liverpool, New York, 13088
TO THE ABOVE-NAMED DEFENDANT(S):
You are hereby summoned and required to submit to Plaintiff's attorneys an Answer to
the Complaint in this action within twenty (20) days after the service of this Summons, exclusive
of the day of service, or within thirty (30) days after service is complete if this Summons is not
personally delivered to you within the State of New York. In case of your failure to answer,
judgment will be taken against you by default for the relief demanded in the Complaint,
Dated: ali bi A f / tay 4
y
Norina A. Melita
SOLOMON AND SOLOMON, P.C.
Attorneys for Plaintiff
Office & P.O. Address
Columbia Circle, Box 15019
Albany, New York 12212-5019
Ph. (518) 456-7200
(File No.: 25932389)
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ONONDAGA
NIAGARA MOHAWK POWER CORPORATION,
D/B/A NATIONAL GRID,
Plaintiff,
COMPLAINT
-against-
Index No.
JOSEPH J. LANE CONST., INC.,
Defendant(s).
Plaintiff, Niagara Mohawk Power Corporation, by its attorneys, Solomon and
Solomon, P.C., complaining of Defendant, respectfully alleges, upon information and belief:
AS AND FOR A FIRST CAUSE OF ACTION
1 At all times hereinafter mentioned, Plaintiff was and still is a domestic
corporation duly organized and existing under the laws of the State of New York and has a
place for the regular transaction of business at 300 Erie Blvd. West, Syracuse, New York.
2. Upon information and belief, the Defendant, Joseph J. Lane Const., Inc. was and
still is a Corporation with a principal place of business located at 200 Terminal Road,
Liverpool, New York, 13088.
3. On or about May 2, 2012, Defendant, its agents, servants and/or employees,
while working in the vicinity of Magnolia Street and Wilbur Ave, Syracuse, NY on and
beneath the conduits, service lines and/or mains and other power and/or gas facilities and
appurtenances of Plaintiff, said Defendant its agents, servants and/or employees, used and
employed excavating equipment.
4. On or about May 2, 2012, Defendant its agents, servants and/or employees, knew
or should have known of the presence of Plaintiffs conduits, service lines and/or mains and
other power and/or gas facilities and appurtenances and the location thereof.
5. On or about May 2, 2012, Defendant its agents, servants and/or employees
notwithstanding its/their knowledge, actual or constructive or both, of the presence or
location of Plaintiff's aforesaid conduits, service lines and/or mains and other power and/or
gas facilities and appurtenances, excavated, dug and performed work in the vicinity of
Magnolia Street and Wilbur Ave, Syracuse, NY and during the course thereof, and ina
reckless, careless and negligent manner, damaged Plaintiff's conduits, service lines and other
power and/or gas facilities and appurtenances hereinbefore mentioned.
6. On or about July 2, 2012, Defendant, its agents, servants and/or employees, while
working in the vicinity of West Willow Street, Syracuse, NY on and beneath the conduits,
service lines and/or mains and other power and/or gas facilities and appurtenances of
Plaintiff, said Defendant its agents, servants and/or employces, used and employed
excavating equipment.
7, On or about July 2, 2012, Defendant its agents, servants and/or employees, knew
or should have known of the presence of Plaintiff's conduits, service lines and/or mains and
other power and/or gas facilities and appurtenances and the location thereof.
8. Onor about July 2, 2012, Defendant its agents, servants and/or employees
notwithstanding its/their knowledge, actual or constructive or both, of the presence or
location of Plaintiff's aforesaid conduits, service lines and/or mains and other power and/or
gas facilities and appurtenances, excavated, dug and performed work in the vicinity of West
Willow Street, Syracuse, NY and during the course thereof, and in a reckless, careless and
negligent manner, damaged Plaintiff's conduits, service lines and other power and/or gas
facilities and appurtenances hereinbefore mentioned.
9. On or about July 2, 2012, Defendant, its agents, servants and/or employees, while
working in the vicinity of West Willow Street, Syracuse, NY on and beneath the conduits,
service lines and/or mains and other power and/or gas facilities and appurtenances of
Plaintiff, said Defendant its agents, servants and/or employees, used and employed
excavating equipment.
10. On or about July 2, 2012, Defendant its agents, servants and/or employees, knew
or should have known of the presence of Plaintiff's conduits, service lines and/or mains and
other power and/or gas facilities and appurtenances and the location thereof.
11. On or about July 2, 2012, Defendant its agents, servants and/or employees
notwithstanding its/their knowledge, actual or constructive or both, of the presence or
location of Plaintiff's aforesaid conduits, service lines and/or mains and other power and/or
gas facilities and appurtenances, excavated, dug and performed work in the vicinity of West
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Willow Street, Syracuse, NY and during the course thereof, and in a reckless, careless and
negligent manner, damaged Plaintiff's conduits, service lines and other power and/or gas
facilities and appurtenances hereinbefore mentioned.
12. On or about July 19, 2012, Defendant, its agents, servants and/or employees,
while working in the vicinity of Clinton Street, Syracuse, NY on and beneath the conduits,
service lines and/or mains and other power and/or gas facilities and appurtenances of
Plaintiff, said Defendant its agents, servants and/or employees, used and employed
excavating equipment.
13. On or about July 19, 2012, Defendant its agents, servants and/or employees, knew
or should have known of the presence of Plaintiff's conduits, service lines and/or mains and
other power and/or gas facilities and appurtenances and the location thereof.
14, On or about July 19, 2012, Defendant its agents, servants and/or employees
notwithstanding its/their knowledge, actual or constructive or both, of the presence or
location of Plaintiff's aforesaid conduits, service lines and/or mains and other power and/or
gas facilities and appurtenances, excavated, dug and performed work in the vicinity of
Clinton Street, Syracuse, NY and during the course thereof, and in a reckless, careless and
negligent manner, damaged Plaintiff's conduits, service lines and other power and/or gas
facilities and appurtenances hereinbefore mentioned.
15. On or about August 8, 2012, Defendant, its agents, servants and/or employees,
while working in the vicinity of State Fair Blvd., Syracuse, NY on and beneath the conduits,
service lines and/or mains and other power and/or gas facilities and appurtenances of
Plaintiff, said Defendant its agents, servants and/or employees, used and employed
excavating equipment.
16. On or about August 8, 2012, Defendant its agents, servants and/or employees,
knew or should have known of the presence of Plaintiff's conduits, service lines and/or mains
and other power and/or gas facilities and appurtenances and the location thereof.
17, On or about August 8, 2012, Defendant its agents, servants and/or employees
notwithstanding its/their knowledge, actual or constructive or both, of the presence or
location of Plaintiff's aforesaid conduits, service lines and/or mains and other power and/or
gas facilities and appurtenances, excavated, dug and performed work in the vicinity of State
Fair Blvd., Syracuse, NY and during the course thereof, and in a reckless, careless and
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negligent manner, damaged Plaintiff's conduits, service lines and other power and/or gas
facilities and appurtenances hereinbefore mentioned.
18. Said damages herein referred to were caused solely by the negligence of
Defendant without any negligence or fault on the part of Plaintiff contributing thereto.
19. Defendant having knowledge, actual, constructive or both, of the existence of the
Plaintiff's facilities at the accident site, conducted their operations in a careless, negligent,
reckless and haphazard manner; exercised improper, negligent, reckless and haphazard
supervision, over their agents, servants and/or employees; improperly and haphazardly
planned and laid out work processes that they were carrying out at the aforesaid site;
employed unskilled, inept, improper, negligent, careless, and reckless workers; was careless,
negligent, reckless and haphazard about protecting the aforesaid property of the Plaintiff,
failed to notify the Plaintiff that they would be working in the area of the Plaintiff's property
and that the unskilled, inept, improper, negligent, carcless and reckless contractors, workers,
agents, servants and/or employees would be working in the immediate vicinity of Plaintiff's
property; failed to avoid having their equipment strike Plaintiff's service facilities, all to the
damage of the Plaintiff.
20. By reason of the foregoing, Plaintiff was damaged in the sum of $ 77,186.37.
21. This is a claim for property damage only so that the limitations of liability of
persons jointly liable as set forth in Article 16 of the CPLR do not apply to this action.
AS AND FOR A SECOND CAUSE OF ACTION
22. Plaintiff repeats, reiterates and realleges each and every allegation contained in
Paragraphs "1" through "21" of Plaintiff's Complaint, inclusive, with the same full force and
effect as though more fully set forth herein at length.
23. On or prior to May 2, 2012, Plaintiff was a public service corporation organized
and existing under and by virtue of the laws of the State of New York. On and before May 2. 2
2012, Plaintiff owned and operated an underground conduit, service lines and other power
and/or gas facilities and appurtenances situated in the vicinity of Magnolia Street and Wilbur
Ave, Syracuse, NY.
24, Prior to and on the aforesaid date, there was in force and effect a statute enacted
for the protection of public service corporations’ property of the class hereinabove described,
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to wit: Section 760 (et seq) of the General Business Law.
25. On or about May 2, 2012, Defendant its agents, servants, and/or employees,
excavated and/or dug the subsurface in the vicinity of Magnolia Street and Wilbur Ave,
Syracuse, NY and said excavation was made without compliance with and/or in violation of
Section 760 (et seq) of the Gencral Business Law.
26. On or prior to July 2, 2012, Plaintiff was a public service corporation organized
and existing under and by virtue of the laws of the State of New York. On and before July 2,
2012, Plaintiff owned and operated an underground conduit, service lines and other power
and/or gas facilities and appurtenances situated in the vicinity of West Willow Street,
Syracuse, NY.
27. Prior to and on the aforesaid date, there was in force and effect a statute enacted
for the protection of public service corporations' property of the class hereinabove described,
to wit: Section 760 (et seq) of the General Business Law.
28. On or about July 2, 2012, Defendant its agents, servants, and/or employces,
excavated and/or dug the subsurface in the vicinity of West Willow Street, Syracuse, NY and
said excavation was made without compliance with and/or in violation of Section 760 (et
seq) of the General Business Law.
29. On or prior to July 2, 2012, Plaintiff was a public service corporation organized
and existing under and by virtue of the laws of the State of New York. On and before July 2,
2012. Plaintiff owned and operated an underground conduit, service lines and other power
and/or gas facilities and appurtenances situated in the vicinity of West Willow Street,
Syracuse, NY.
30. Prior to and on the aforesaid date, there was in force and effect a statute enacted
for the protection of public service corporations’ property of the class hereinabove described,
to wit: Section 760 (et seq) of the General Business Law.
31. On or about July 2, 2012, Defendant its agents, servants, and/or employces,
excavated and/or dug the subsurface in the vicinity of West Willow Street, Syracuse, NY and
said excavation was made without compliance with and/or in violation of Section 760 (et
seq) of the General Business Law.
32. On or prior to July 19, 2012, Plaintiff was a public service corporation organized
and existing under and by virtue of the laws of the State of New York. On and before July
5
19, 2012, Plaintiff owned and operated an underground conduit, service lines and other
power and/or gas facilities and appurtenances situated in the vicinity of Clinton Street,
Syracuse, NY.
33. Prior to and on the aforesaid date, there was in force and effect a statute enacted
for the protection of public service corporations’ property of the class hereinabove described, >
to wit: Section 760 (et seq) of the General Business Law.
34. On or about July 19, 2012, Defendant its agents, servants, and/or employees,
excavated and/or dug the subsurface in the vicinity of Clinton Street, Syracuse, NY and said
excavation was made without compliance with and/or in violation of Section 760 (et seq) of
the General Business Law.
35. On or prior to August 8, 2012, Plaintiff was a public service corporation
organized and existing under and by virtue of the laws of the State of New York. On and
before August 8, 2012, Plaintiff owned and operated an underground conduit, service lines
and other power and/or gas facilities and appurtenances situated in the vicinity of State Fair
Blvd., Syracuse, NY.
36. Prior to and on the aforesaid date, there was in force and effect a statute enacted
for the protection of public service corporations’ property of the class hereinabove described,
to wit: Section 760 (et seq) of the General Business Law.
37. On or about August 8, 2012, Defendant its agents, servants, and/or employees,
excavated and/or dug the subsurface in the vicinity of State Fair Blvd., Syracuse, NY and
said excavation was made without compliance with and/or in violation of Section 760 (et
seq) of the General Business Law.
38. Said violations of Section 760 (et seq) of the General Business Law resulting in
damages to Plaintiff's aforesaid conduits, cables and other power and/or gas facilities and
appurtenances in the sum of $ 77,186.37.
AS AND FOR A THIRD CAUSE OF ACTION
39. Plaintiff repeats, reiterates and realleges each and every allegation contained in
Paragraphs "1" through "38" of its Complaint, inclusive, with the same full force and effect
as if same were more fully set forth herein at length.
6
40. Prior to and on the aforesaid date, there was in force and effect a statute enacted
for the protection of public service corporations property of the class hereinbefore described,
to wit: Section 119-b of the Public Service Law of the State of New York.
41. On or about May 2, 2012, Defendant its agents, servants and/or employees
excavated and/or dug the subsurface in the vicinity of Magnolia Street and Wilbur Ave,
Syracuse, NY and said excavation was made without compliance with and/or in violation of
Section 119-b.
42. Prior to and on the aforesaid date, there was in force and effect a statute enacted
for the protection of public service corporations property of the class hereinbefore described,
to wit: Section 119-b of the Public Service Law of the State of New York.
43. On or about July 2, 2012, Defendant its agents, servants and/or employees
excavated and/or dug the subsurface in the vicinity of West Willow Street, Syracuse, NY and
said excavation was made without compliance with and/or in violation of Section 119-b.
44, Prior to and on the aforesaid date, there was in force and effect a statute enacted
for the protection of public service corporations property of the class hereinbefore described,
to wit: Section 119-b of the Public Service Law of the State of New York.
45. On or about July 2, 2012, Defendant its agents, servants and/or employees
excavated and/or dug the subsurface in the vicinity of West Willow Street, Syracuse, NY and
said excavation was made without compliance with and/or in violation of Section 119-b.
46. Prior to and on the aforesaid date, there was in force and effect a statute enacted
for the protection of public service corporations property of the class hereinbefore described,
to wit: Section 119-b of the Public Service Law of the State of New York.
47, On or about July 19, 2012, Defendant its agents, servants and/or employees
excavated and/or dug the subsurface in the vicinity of Clinton Street, Syracuse, NY and said
excavation was made without compliance with and/or in violation of Section 119-b.
48. Prior to and on the aforesaid date, there was in force and effect a statute enacted
for the protection of public service corporations property of the class hereinbefore described,
to wit: Section 119-b of the Public Service Law of the State of New York.
49. On or about August 8, 2012, Defendant its agents, servants and/or employees
excavated and/or dug the subsurface in the vicinity of State Fair Blvd., Syracuse, NY and
aid excavation was made without compliance with and/or in violation of Section 119-b.
7
50. Said violations resulted in damages to Plaintiff's facilitics in the sum of
$77,186.37.
AS AND FOR A FOURTH CAUSE OF ACTION
51. Plaintiff repeats, reiterates and realleges each and every allegation contained in
Paragraphs "1" through "50" of its Complaint, inclusive, with the same full force and effect
as if same were more fully set forth herein at length.
52. At all times heretofore mentioned, there was in force and effect a certain code,
rule or regulation of the State of New York enacted for the protection of public service
corporations’ property of the class hereinbefore described, to wit: Industrial Code Rule No.
53 (16 NYCRR Section 753 ).
53. On or about May 2, 2012, Defendant, its agents, servants, and/or employees,
excavated and/or dug into the subsurface in the vicinity of Magnolia Street and Wilbur Ave,
Syracuse, NY and said excavation was made without compliance with the provisions of said
Industrial Code Rule No. 53.
54. On or about July 2, 2012, Defendant, its agents, servants, and/or employees,
excavated and/or dug into the subsurface in the vicinity of West Willow Street, Syracuse, NY
and said excavation was made without compliance with the provisions of said Industrial
Code Rule No. 53.
55. On or about July 2, 2012, Defendant, its agents, servants, and/or employees,
excavated and/or dug into the subsurface in the vicinity of West Willow Street, Syracuse, NY
and said excavation was made without compliance with the provisions of said Industrial
Code Rule No. 53.
56. On or about July 19, 2012, Defendant, its agents, servants, and/or employees,
excavated and/or dug into the subsurface in the vicinity of Clinton Street, Syracuse, NY and
said excavation was made without compliance with the provisions of said Industrial Code
Rule No. 53.
57. On or about August 8, 2012, Defendant, its agents, servants, and/or employees,
excavated and/or dug into the subsurface in the vicinity of State Fair Blvd., Syracuse, NY
and said excavation was made without compliance with the provisions of said Industrial
8
Code Rule No. 53.
38. Said violations resulted in damages to Plaintiff's aforesaid conduits, cables and
other power and/or gas facilities and appurtenances in the sum of $77,186.37.
AS AND FOR A FIFTH CAUSE OF ACTION
59. Plaintiff repeats, reiterates and realleges each and every allegation contained in
Paragraphs "1" through "58" of its Complaint, inclusive, with the same full force and effect
as if same were more fully set forth herein at length.
60. At all times heretofore mentioned, Plaintiff had an easement located in the
vicinity of Magnolia Street and Wilbur Ave, Syracuse, NY to wit: Plaintiff was able to and
did run conduits, cables and other power and/or gas facilities and appurtenances.
61. At all times heretofore mentioned, Plaintiff was using and/or was in actual
possession of the aforementioned conduits, cables and other power and/or gas facilities and
appurtenances located at the vicinity of Magnolia Street and Wilbur Ave, Syracuse, NY.
62. On or about May 2, 2012 Defendant intentionally trespassed upon the aforesaid
conduits, cables and other power and/or gas facilities and appurtenances.
63. At all times heretofore mentioned, Plaintiff had an easement located in the
vicinity of West Willow Street, Syracuse, NY to wit: Plaintiff was able to and did run
conduits, cables and other power and/or gas facilities and appurtenances.
64. At all times heretofore mentioned, Plaintiff was using and/or was in actual
possession of the aforementioned conduits, cables and other power and/or gas facilities and
appurtenances located at the vicinity of West Willow Street, Syracuse, NY.
65. On or about July 2, 2012 Defendant intentionally trespassed upon the aforesaid
conduits, cables and other power and/or gas facilities and appurtenances.
66. At all times heretofore mentioned, Plaintiff had an easement located in the
vicinity of West Willow Street, Syracuse, NY to wit: Plaintiff was able to and did run
conduits, cables and other power and/or gas facilities and appurtenances.
67. At all times heretofore mentioned, Plaintiff was using and/or was in actual
possession of the aforementioned conduits, cables and other power and/or gas facilities and
appurtenances located at the vicinity of West Willow Street, Syracuse, NY.
9
68. On or about July 2, 2012 Defendant intentionally trespassed upon the aforesaid
conduits, cables and other power and/or gas facilities and appurtenances.
69. At all times heretofore mentioned, Plaintiff had an easement located in the
vicinity of Clinton Street, Syracuse, NY to wit: Plaintiff was able to and did run conduits,
cables and other power and/or gas facilities and appurtenances.
70. At all times heretofore mentioned, Plaintiff was using and/or was in actual
possession of the aforementioned conduits, cables and other power and/or gas facilities and
appurtenances located at the vicinity of Clinton Street, Syracuse, NY.
71. On or about July 19, 2012 Defendant intentionally trespassed upon the aforesaid
conduits, cables and other power and/or gas facilities and appurtenances.
72. At all times heretofore mentioned, Plaintiff had an easement located in the
vicinity of State Fair Blvd., Syracuse, NY to wit: Plaintiff was able to and did run conduits,
cables and other power and/or gas facilities and appurtenances.
73. At all times heretofore mentioned, Plaintiff was using and/or was in actual
possession of the aforementioned conduits, cables and other power and/or gas facilities and
appurtenances located at the vicinity of State Fair Blvd., Syracuse, NY.
74, On or about August 8, 2012 Defendant intentionally trespassed upon the aforesaid
conduits, cables and other power and/or gas facilities and appurtenances.
75. As a direct and proximate cause of said trespass, it became necessary for Plaintiff
to repair the damages to Plaintiffs aforesaid conduits, service lines and other power and/or
gas facilities and appurtenances in the sum of $ 77,186.37.
10
WHEREFORE, Plaintiff demands judgment against Defendant in the sum of
$77,186.37 with interest from August 8, 2012 together with costs and disbursements of this
action.
Dated:
afi
‘Yours, i baba Jf
Norina A. Melita
SOLOMON AND SOLOMON, P.C.
Attorneys for Plaintiff
Office & P.O. Address
Columbia Circle, Box 15019
Albany, New York 12212-5019
Ph. (518) 456-7200
File # 25932389
IL
Preview
(FILED: ONONDAGA COUNTY CLERK 0271772015 03:16 PM INDEX NO. 2015EF725 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/17/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ONONDAGA SUMMONS NIAGARA MOHAWK POWER CORPORATION d/b/a NATIONAL GRID Index No. Plaintiff, Filed on: -against- The basis of venue designated above is that the JOSEPH J. LANE CONST., INC., Defendant has a principal place of business in the Defendant(s). County of Onondaga. Plaintiff's Address: 300 Erie Boulevard West Syracuse, NY 13202 Defendant’s Address: 200 Terminal Road Liverpool, New York, 13088 TO THE ABOVE-NAMED DEFENDANT(S): You are hereby summoned and required to submit to Plaintiff's attorneys an Answer to the Complaint in this action within twenty (20) days after the service of this Summons, exclusive of the day of service, or within thirty (30) days after service is complete if this Summons is not personally delivered to you within the State of New York. In case of your failure to answer, judgment will be taken against you by default for the relief demanded in the Complaint, Dated: ali bi A f / tay 4 y Norina A. Melita SOLOMON AND SOLOMON, P.C. Attorneys for Plaintiff Office & P.O. Address Columbia Circle, Box 15019 Albany, New York 12212-5019 Ph. (518) 456-7200 (File No.: 25932389) SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ONONDAGA NIAGARA MOHAWK POWER CORPORATION, D/B/A NATIONAL GRID, Plaintiff, COMPLAINT -against- Index No. JOSEPH J. LANE CONST., INC., Defendant(s). Plaintiff, Niagara Mohawk Power Corporation, by its attorneys, Solomon and Solomon, P.C., complaining of Defendant, respectfully alleges, upon information and belief: AS AND FOR A FIRST CAUSE OF ACTION 1 At all times hereinafter mentioned, Plaintiff was and still is a domestic corporation duly organized and existing under the laws of the State of New York and has a place for the regular transaction of business at 300 Erie Blvd. West, Syracuse, New York. 2. Upon information and belief, the Defendant, Joseph J. Lane Const., Inc. was and still is a Corporation with a principal place of business located at 200 Terminal Road, Liverpool, New York, 13088. 3. On or about May 2, 2012, Defendant, its agents, servants and/or employees, while working in the vicinity of Magnolia Street and Wilbur Ave, Syracuse, NY on and beneath the conduits, service lines and/or mains and other power and/or gas facilities and appurtenances of Plaintiff, said Defendant its agents, servants and/or employees, used and employed excavating equipment. 4. On or about May 2, 2012, Defendant its agents, servants and/or employees, knew or should have known of the presence of Plaintiffs conduits, service lines and/or mains and other power and/or gas facilities and appurtenances and the location thereof. 5. On or about May 2, 2012, Defendant its agents, servants and/or employees notwithstanding its/their knowledge, actual or constructive or both, of the presence or location of Plaintiff's aforesaid conduits, service lines and/or mains and other power and/or gas facilities and appurtenances, excavated, dug and performed work in the vicinity of Magnolia Street and Wilbur Ave, Syracuse, NY and during the course thereof, and ina reckless, careless and negligent manner, damaged Plaintiff's conduits, service lines and other power and/or gas facilities and appurtenances hereinbefore mentioned. 6. On or about July 2, 2012, Defendant, its agents, servants and/or employees, while working in the vicinity of West Willow Street, Syracuse, NY on and beneath the conduits, service lines and/or mains and other power and/or gas facilities and appurtenances of Plaintiff, said Defendant its agents, servants and/or employces, used and employed excavating equipment. 7, On or about July 2, 2012, Defendant its agents, servants and/or employees, knew or should have known of the presence of Plaintiff's conduits, service lines and/or mains and other power and/or gas facilities and appurtenances and the location thereof. 8. Onor about July 2, 2012, Defendant its agents, servants and/or employees notwithstanding its/their knowledge, actual or constructive or both, of the presence or location of Plaintiff's aforesaid conduits, service lines and/or mains and other power and/or gas facilities and appurtenances, excavated, dug and performed work in the vicinity of West Willow Street, Syracuse, NY and during the course thereof, and in a reckless, careless and negligent manner, damaged Plaintiff's conduits, service lines and other power and/or gas facilities and appurtenances hereinbefore mentioned. 9. On or about July 2, 2012, Defendant, its agents, servants and/or employees, while working in the vicinity of West Willow Street, Syracuse, NY on and beneath the conduits, service lines and/or mains and other power and/or gas facilities and appurtenances of Plaintiff, said Defendant its agents, servants and/or employees, used and employed excavating equipment. 10. On or about July 2, 2012, Defendant its agents, servants and/or employees, knew or should have known of the presence of Plaintiff's conduits, service lines and/or mains and other power and/or gas facilities and appurtenances and the location thereof. 11. On or about July 2, 2012, Defendant its agents, servants and/or employees notwithstanding its/their knowledge, actual or constructive or both, of the presence or location of Plaintiff's aforesaid conduits, service lines and/or mains and other power and/or gas facilities and appurtenances, excavated, dug and performed work in the vicinity of West 2 Willow Street, Syracuse, NY and during the course thereof, and in a reckless, careless and negligent manner, damaged Plaintiff's conduits, service lines and other power and/or gas facilities and appurtenances hereinbefore mentioned. 12. On or about July 19, 2012, Defendant, its agents, servants and/or employees, while working in the vicinity of Clinton Street, Syracuse, NY on and beneath the conduits, service lines and/or mains and other power and/or gas facilities and appurtenances of Plaintiff, said Defendant its agents, servants and/or employees, used and employed excavating equipment. 13. On or about July 19, 2012, Defendant its agents, servants and/or employees, knew or should have known of the presence of Plaintiff's conduits, service lines and/or mains and other power and/or gas facilities and appurtenances and the location thereof. 14, On or about July 19, 2012, Defendant its agents, servants and/or employees notwithstanding its/their knowledge, actual or constructive or both, of the presence or location of Plaintiff's aforesaid conduits, service lines and/or mains and other power and/or gas facilities and appurtenances, excavated, dug and performed work in the vicinity of Clinton Street, Syracuse, NY and during the course thereof, and in a reckless, careless and negligent manner, damaged Plaintiff's conduits, service lines and other power and/or gas facilities and appurtenances hereinbefore mentioned. 15. On or about August 8, 2012, Defendant, its agents, servants and/or employees, while working in the vicinity of State Fair Blvd., Syracuse, NY on and beneath the conduits, service lines and/or mains and other power and/or gas facilities and appurtenances of Plaintiff, said Defendant its agents, servants and/or employees, used and employed excavating equipment. 16. On or about August 8, 2012, Defendant its agents, servants and/or employees, knew or should have known of the presence of Plaintiff's conduits, service lines and/or mains and other power and/or gas facilities and appurtenances and the location thereof. 17, On or about August 8, 2012, Defendant its agents, servants and/or employees notwithstanding its/their knowledge, actual or constructive or both, of the presence or location of Plaintiff's aforesaid conduits, service lines and/or mains and other power and/or gas facilities and appurtenances, excavated, dug and performed work in the vicinity of State Fair Blvd., Syracuse, NY and during the course thereof, and in a reckless, careless and 3 negligent manner, damaged Plaintiff's conduits, service lines and other power and/or gas facilities and appurtenances hereinbefore mentioned. 18. Said damages herein referred to were caused solely by the negligence of Defendant without any negligence or fault on the part of Plaintiff contributing thereto. 19. Defendant having knowledge, actual, constructive or both, of the existence of the Plaintiff's facilities at the accident site, conducted their operations in a careless, negligent, reckless and haphazard manner; exercised improper, negligent, reckless and haphazard supervision, over their agents, servants and/or employees; improperly and haphazardly planned and laid out work processes that they were carrying out at the aforesaid site; employed unskilled, inept, improper, negligent, careless, and reckless workers; was careless, negligent, reckless and haphazard about protecting the aforesaid property of the Plaintiff, failed to notify the Plaintiff that they would be working in the area of the Plaintiff's property and that the unskilled, inept, improper, negligent, carcless and reckless contractors, workers, agents, servants and/or employees would be working in the immediate vicinity of Plaintiff's property; failed to avoid having their equipment strike Plaintiff's service facilities, all to the damage of the Plaintiff. 20. By reason of the foregoing, Plaintiff was damaged in the sum of $ 77,186.37. 21. This is a claim for property damage only so that the limitations of liability of persons jointly liable as set forth in Article 16 of the CPLR do not apply to this action. AS AND FOR A SECOND CAUSE OF ACTION 22. Plaintiff repeats, reiterates and realleges each and every allegation contained in Paragraphs "1" through "21" of Plaintiff's Complaint, inclusive, with the same full force and effect as though more fully set forth herein at length. 23. On or prior to May 2, 2012, Plaintiff was a public service corporation organized and existing under and by virtue of the laws of the State of New York. On and before May 2. 2 2012, Plaintiff owned and operated an underground conduit, service lines and other power and/or gas facilities and appurtenances situated in the vicinity of Magnolia Street and Wilbur Ave, Syracuse, NY. 24, Prior to and on the aforesaid date, there was in force and effect a statute enacted for the protection of public service corporations’ property of the class hereinabove described, 4 to wit: Section 760 (et seq) of the General Business Law. 25. On or about May 2, 2012, Defendant its agents, servants, and/or employees, excavated and/or dug the subsurface in the vicinity of Magnolia Street and Wilbur Ave, Syracuse, NY and said excavation was made without compliance with and/or in violation of Section 760 (et seq) of the Gencral Business Law. 26. On or prior to July 2, 2012, Plaintiff was a public service corporation organized and existing under and by virtue of the laws of the State of New York. On and before July 2, 2012, Plaintiff owned and operated an underground conduit, service lines and other power and/or gas facilities and appurtenances situated in the vicinity of West Willow Street, Syracuse, NY. 27. Prior to and on the aforesaid date, there was in force and effect a statute enacted for the protection of public service corporations' property of the class hereinabove described, to wit: Section 760 (et seq) of the General Business Law. 28. On or about July 2, 2012, Defendant its agents, servants, and/or employces, excavated and/or dug the subsurface in the vicinity of West Willow Street, Syracuse, NY and said excavation was made without compliance with and/or in violation of Section 760 (et seq) of the General Business Law. 29. On or prior to July 2, 2012, Plaintiff was a public service corporation organized and existing under and by virtue of the laws of the State of New York. On and before July 2, 2012. Plaintiff owned and operated an underground conduit, service lines and other power and/or gas facilities and appurtenances situated in the vicinity of West Willow Street, Syracuse, NY. 30. Prior to and on the aforesaid date, there was in force and effect a statute enacted for the protection of public service corporations’ property of the class hereinabove described, to wit: Section 760 (et seq) of the General Business Law. 31. On or about July 2, 2012, Defendant its agents, servants, and/or employces, excavated and/or dug the subsurface in the vicinity of West Willow Street, Syracuse, NY and said excavation was made without compliance with and/or in violation of Section 760 (et seq) of the General Business Law. 32. On or prior to July 19, 2012, Plaintiff was a public service corporation organized and existing under and by virtue of the laws of the State of New York. On and before July 5 19, 2012, Plaintiff owned and operated an underground conduit, service lines and other power and/or gas facilities and appurtenances situated in the vicinity of Clinton Street, Syracuse, NY. 33. Prior to and on the aforesaid date, there was in force and effect a statute enacted for the protection of public service corporations’ property of the class hereinabove described, > to wit: Section 760 (et seq) of the General Business Law. 34. On or about July 19, 2012, Defendant its agents, servants, and/or employees, excavated and/or dug the subsurface in the vicinity of Clinton Street, Syracuse, NY and said excavation was made without compliance with and/or in violation of Section 760 (et seq) of the General Business Law. 35. On or prior to August 8, 2012, Plaintiff was a public service corporation organized and existing under and by virtue of the laws of the State of New York. On and before August 8, 2012, Plaintiff owned and operated an underground conduit, service lines and other power and/or gas facilities and appurtenances situated in the vicinity of State Fair Blvd., Syracuse, NY. 36. Prior to and on the aforesaid date, there was in force and effect a statute enacted for the protection of public service corporations’ property of the class hereinabove described, to wit: Section 760 (et seq) of the General Business Law. 37. On or about August 8, 2012, Defendant its agents, servants, and/or employees, excavated and/or dug the subsurface in the vicinity of State Fair Blvd., Syracuse, NY and said excavation was made without compliance with and/or in violation of Section 760 (et seq) of the General Business Law. 38. Said violations of Section 760 (et seq) of the General Business Law resulting in damages to Plaintiff's aforesaid conduits, cables and other power and/or gas facilities and appurtenances in the sum of $ 77,186.37. AS AND FOR A THIRD CAUSE OF ACTION 39. Plaintiff repeats, reiterates and realleges each and every allegation contained in Paragraphs "1" through "38" of its Complaint, inclusive, with the same full force and effect as if same were more fully set forth herein at length. 6 40. Prior to and on the aforesaid date, there was in force and effect a statute enacted for the protection of public service corporations property of the class hereinbefore described, to wit: Section 119-b of the Public Service Law of the State of New York. 41. On or about May 2, 2012, Defendant its agents, servants and/or employees excavated and/or dug the subsurface in the vicinity of Magnolia Street and Wilbur Ave, Syracuse, NY and said excavation was made without compliance with and/or in violation of Section 119-b. 42. Prior to and on the aforesaid date, there was in force and effect a statute enacted for the protection of public service corporations property of the class hereinbefore described, to wit: Section 119-b of the Public Service Law of the State of New York. 43. On or about July 2, 2012, Defendant its agents, servants and/or employees excavated and/or dug the subsurface in the vicinity of West Willow Street, Syracuse, NY and said excavation was made without compliance with and/or in violation of Section 119-b. 44, Prior to and on the aforesaid date, there was in force and effect a statute enacted for the protection of public service corporations property of the class hereinbefore described, to wit: Section 119-b of the Public Service Law of the State of New York. 45. On or about July 2, 2012, Defendant its agents, servants and/or employees excavated and/or dug the subsurface in the vicinity of West Willow Street, Syracuse, NY and said excavation was made without compliance with and/or in violation of Section 119-b. 46. Prior to and on the aforesaid date, there was in force and effect a statute enacted for the protection of public service corporations property of the class hereinbefore described, to wit: Section 119-b of the Public Service Law of the State of New York. 47, On or about July 19, 2012, Defendant its agents, servants and/or employees excavated and/or dug the subsurface in the vicinity of Clinton Street, Syracuse, NY and said excavation was made without compliance with and/or in violation of Section 119-b. 48. Prior to and on the aforesaid date, there was in force and effect a statute enacted for the protection of public service corporations property of the class hereinbefore described, to wit: Section 119-b of the Public Service Law of the State of New York. 49. On or about August 8, 2012, Defendant its agents, servants and/or employees excavated and/or dug the subsurface in the vicinity of State Fair Blvd., Syracuse, NY and aid excavation was made without compliance with and/or in violation of Section 119-b. 7 50. Said violations resulted in damages to Plaintiff's facilitics in the sum of $77,186.37. AS AND FOR A FOURTH CAUSE OF ACTION 51. Plaintiff repeats, reiterates and realleges each and every allegation contained in Paragraphs "1" through "50" of its Complaint, inclusive, with the same full force and effect as if same were more fully set forth herein at length. 52. At all times heretofore mentioned, there was in force and effect a certain code, rule or regulation of the State of New York enacted for the protection of public service corporations’ property of the class hereinbefore described, to wit: Industrial Code Rule No. 53 (16 NYCRR Section 753 ). 53. On or about May 2, 2012, Defendant, its agents, servants, and/or employees, excavated and/or dug into the subsurface in the vicinity of Magnolia Street and Wilbur Ave, Syracuse, NY and said excavation was made without compliance with the provisions of said Industrial Code Rule No. 53. 54. On or about July 2, 2012, Defendant, its agents, servants, and/or employees, excavated and/or dug into the subsurface in the vicinity of West Willow Street, Syracuse, NY and said excavation was made without compliance with the provisions of said Industrial Code Rule No. 53. 55. On or about July 2, 2012, Defendant, its agents, servants, and/or employees, excavated and/or dug into the subsurface in the vicinity of West Willow Street, Syracuse, NY and said excavation was made without compliance with the provisions of said Industrial Code Rule No. 53. 56. On or about July 19, 2012, Defendant, its agents, servants, and/or employees, excavated and/or dug into the subsurface in the vicinity of Clinton Street, Syracuse, NY and said excavation was made without compliance with the provisions of said Industrial Code Rule No. 53. 57. On or about August 8, 2012, Defendant, its agents, servants, and/or employees, excavated and/or dug into the subsurface in the vicinity of State Fair Blvd., Syracuse, NY and said excavation was made without compliance with the provisions of said Industrial 8 Code Rule No. 53. 38. Said violations resulted in damages to Plaintiff's aforesaid conduits, cables and other power and/or gas facilities and appurtenances in the sum of $77,186.37. AS AND FOR A FIFTH CAUSE OF ACTION 59. Plaintiff repeats, reiterates and realleges each and every allegation contained in Paragraphs "1" through "58" of its Complaint, inclusive, with the same full force and effect as if same were more fully set forth herein at length. 60. At all times heretofore mentioned, Plaintiff had an easement located in the vicinity of Magnolia Street and Wilbur Ave, Syracuse, NY to wit: Plaintiff was able to and did run conduits, cables and other power and/or gas facilities and appurtenances. 61. At all times heretofore mentioned, Plaintiff was using and/or was in actual possession of the aforementioned conduits, cables and other power and/or gas facilities and appurtenances located at the vicinity of Magnolia Street and Wilbur Ave, Syracuse, NY. 62. On or about May 2, 2012 Defendant intentionally trespassed upon the aforesaid conduits, cables and other power and/or gas facilities and appurtenances. 63. At all times heretofore mentioned, Plaintiff had an easement located in the vicinity of West Willow Street, Syracuse, NY to wit: Plaintiff was able to and did run conduits, cables and other power and/or gas facilities and appurtenances. 64. At all times heretofore mentioned, Plaintiff was using and/or was in actual possession of the aforementioned conduits, cables and other power and/or gas facilities and appurtenances located at the vicinity of West Willow Street, Syracuse, NY. 65. On or about July 2, 2012 Defendant intentionally trespassed upon the aforesaid conduits, cables and other power and/or gas facilities and appurtenances. 66. At all times heretofore mentioned, Plaintiff had an easement located in the vicinity of West Willow Street, Syracuse, NY to wit: Plaintiff was able to and did run conduits, cables and other power and/or gas facilities and appurtenances. 67. At all times heretofore mentioned, Plaintiff was using and/or was in actual possession of the aforementioned conduits, cables and other power and/or gas facilities and appurtenances located at the vicinity of West Willow Street, Syracuse, NY. 9 68. On or about July 2, 2012 Defendant intentionally trespassed upon the aforesaid conduits, cables and other power and/or gas facilities and appurtenances. 69. At all times heretofore mentioned, Plaintiff had an easement located in the vicinity of Clinton Street, Syracuse, NY to wit: Plaintiff was able to and did run conduits, cables and other power and/or gas facilities and appurtenances. 70. At all times heretofore mentioned, Plaintiff was using and/or was in actual possession of the aforementioned conduits, cables and other power and/or gas facilities and appurtenances located at the vicinity of Clinton Street, Syracuse, NY. 71. On or about July 19, 2012 Defendant intentionally trespassed upon the aforesaid conduits, cables and other power and/or gas facilities and appurtenances. 72. At all times heretofore mentioned, Plaintiff had an easement located in the vicinity of State Fair Blvd., Syracuse, NY to wit: Plaintiff was able to and did run conduits, cables and other power and/or gas facilities and appurtenances. 73. At all times heretofore mentioned, Plaintiff was using and/or was in actual possession of the aforementioned conduits, cables and other power and/or gas facilities and appurtenances located at the vicinity of State Fair Blvd., Syracuse, NY. 74, On or about August 8, 2012 Defendant intentionally trespassed upon the aforesaid conduits, cables and other power and/or gas facilities and appurtenances. 75. As a direct and proximate cause of said trespass, it became necessary for Plaintiff to repair the damages to Plaintiffs aforesaid conduits, service lines and other power and/or gas facilities and appurtenances in the sum of $ 77,186.37. 10 WHEREFORE, Plaintiff demands judgment against Defendant in the sum of $77,186.37 with interest from August 8, 2012 together with costs and disbursements of this action. Dated: afi ‘Yours, i baba Jf Norina A. Melita SOLOMON AND SOLOMON, P.C. Attorneys for Plaintiff Office & P.O. Address Columbia Circle, Box 15019 Albany, New York 12212-5019 Ph. (518) 456-7200 File # 25932389 IL