Motion-Secondary: Rosenbaum, Rosenfeld & Sonnenblick, Llp, R&R Properties Llc, Computerized Diagnostic Scanning Associates, P.C. v. Excalibur Group Na, Llc, A Superior Service And Repair Co. Inc., Home Systems Engineering, Inc., Philips Healthcare, Philips Medical Systems North America Company, Philips Electronics North America Corporation, Philips Medical Systems North America, Inc., Philips Healthcare Informatics, Inc., Estate Of Merle H. Eisenstein

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                                INDEX   NO.   150083/2014
FILED:      NEW         YORK       COUNTY      CLERK     04/07/2014
NYSCEF   DOC.     NO.   25                                                                        RECEIVED    NYSCEF:    04/07/2014




                SUPREME COURT OF THE STATE OF NEW YORK
                COUNTY OF NEW YORK
                meen                en ne ee            ene
                ROSENBAUM, ROSENFELD & SONNENBLICK, LLP                                           Index No. 150083/2014
                R&R PROPERTIES LLC AND COMPUTERIZED
                DIAGNOSTIC SCANNING ASSOCIATES, P.C.

                                          Plaintiff,                                              AFFIRMATION
                                                                                                  IN SUPPORT
                         vs.


                EXCALIBUR GROUP NA, LLC, A SUPERIOR SERVICE
                AND REPAIR CO. INC., HOME SYSTEMS
                ENGINEERING, INC., PHILIPS HEALTHCARE, PHILIPS
                MEDICAL SYSTEMS NORTH AMERICA COMPANY,
                PHILIPS ELECTRONICS NORTH AMERICA
                CORPORATION, PHILIPS MEDICAL SYSTEMS NORTH
                AMERICA, INC., PHILIPS HEALTHCARE INFORMATICS,
                INC. and ESTATE OF MERLE H. EISENSTEIN

                                          Defendants.
                mentee enna
                         e ene nnn enema nnnnennnnnn


                         RICHARD B. CAMARDA, an attorney duly admitted to practice law before the Courts of

                the State of New York, affirms the following to be true under the penalties of perjury:


                         1         I am associated with the law firm of FARBER BROCKS & ZANE L.L.P., attorneys

                for defendant A SUPERIOR SERVICE and REPAIR CO. INC. (“Superior”), in the above-entitled

                matter and am fully familiar with the facts and circumstances at issue herein.


                         2.        This affirmation is submitted in support of the instant motion which seeks an Order,

                (1) pursuant to CPLR §3211(a)(1) & (7), dismissing the plaintiffs’ Complaint in its entirety with

                prejudice on the grounds that based upon documentary evidence the Complaint fails to state a cause

                of action; and/or (2), pursuant to CPLR       §3211(a)(4), dismissing the plaintiffs’ Complaint in its

                entirety with prejudice on the grounds that the instant action is duplicative of two earlier filed actions




                {00180103.DOC /}
involving the same parties for the same causes of action; and/or (3), treating the motion as one for

summary judgment pursuant to CPLR § 3211(c) and dismissing plaintiffs’ Complaint, and any and

all cross-claims with prejudice on the grounds that no triable issues of fact exist as a matter of law.


                                    PRELIMINARY STATEMENT

        1         Dismissal of this action is appropriate in that this action is duplicative of two earlier

filed actions involving the same parties and same dispute.


        2         In May 2011, prior to the filing of the instant action, The Travelers Indemnity

Company      of   Connecticut    (“Travelers”),    as     subrogee   of   ROSENBAUM,       ROSENFELD,

SONNENBLICK, LLP (“RRS”), commenced a subrogation lawsuit against EXCALIBUR GROUP

NA LLC (“Excalibur”), a general contractor retained by PHILIPS MEDICAL SYSTEMS NORTH

AMERICA COMPANY to renovate space leased by RRS at the premises located at 1421 Third

Avenue, New       York, New     York (“the Premises”), to recover benefits paid to RRS for alleged

property damage.       Travelers also asserted identical claims against Superior, a New York City

Licensed Master Plumber subcontracted by Excalibur to perform limited plumbing services at the

Premises; and HOME         SYSTEMS       ENGINEERING,          INC. (“Home    Systems”), which allegedly

provided engineering services at the Premises.          Travelers filed the lawsuit in Supreme Court, New

York County, and that action is captioned The Travelers Indemnity Company of Connecticut a/s/o

Rosenbaum,    Rosenfeld, Sonnenblick, LLP v. A Superior Service and Repair Co. Inc., Excalibur

Group NA, L.L.C., and Home Systems Engineering, Inc., Index No. 150153/2011 (“the Travelers

Action”). (Exhibit A).

       3          In December 2012, Federal Insurance Company (“Federal”), as subrogee of RRS,

commenced a separate, but nearly identical, subrogation lawsuit against Excalibur, Superior, and

{00180103.DOC /}                                  2
Home Systems, to recover benefits paid to RRS for alleged property damage.            Federal filed the

lawsuit in Supreme Court, New        York County, and that action is captioned Federal Insurance

Company a/s/o Rosenbaum, Rosenfeld & Sonnenblick, LLP v. A Superior Service and Repair Co.

Inc., Excalibur Group NA, L.L.C., and Home Systems Engineering, Inc., Index No. 150405/2013

(“the Federal Action”).    (Exhibit B).


        4       The Travelers Action was joined with the Federal Action for purposes of discovery

and trial, and those actions are currently pending before the Honorable Ellen M. Coin. (Exhibit E).

The Note of Issue has been filed in both the Travelers Action and the Federal Action. (Exhibit F).


        5       In January 2014, RRS, R&R PROPERTIES LLC (“R&R”), and COMPUTERIZED

DIAGNOSTIC        SCANNING        ASSOCIATES,      P.C.   (“CDSA”)    (collectively herein “the RRS

Plaintiffs”) commenced a lawsuit against Excalibur, Superior, and Home Systems to recover for the

same property damage alleged in the Travelers Action and the Federal Action.         However, the RRS

Plaintiffs also named as defendants the ESTATE        OF MERLE       H. EISENSTEIN (“Eisenstein”),

which allegedly provided architectural services at the Premises; and PHILIPS HEALTHCARE,

PHILIPS     MEDICAL       SYSTEMS     NORTH    AMERICA      COMPANY,       PHILIPS    ELECTRONICS

NORTH AMERICA CORPORATION, PHILIPS MEDICAL SYSTEMS NORTH AMERICA, INC.,

and PHILIPS HEALTHCARE INFORMATICS, INC. (collectively herein “Philips Medical”), which

allegedly   retained Excalibur to perform     the renovations,   leased medical equipment to RRS,

attempted to repair said equipment, and/or supervised the renovations performed at the Premises.

(Exhibit G).


        6       RRS is a plaintiff in all three actions, and Excalibur, Superior and Home Systems are

defendants in all three actions. In each of these actions, the plaintiffs claim RRS sustained property

{00180103.DOC /}                               3
damage when a third floor toilet overflowed water and/or waste into RRS’s leased space; and that the

overflow was proximately caused by the defendants’ improper connection of a 3-inch sanitary branch

(a horizontal pipe) to a 4-inch cast iron stack (a primary vertical pipe) that plaintiffs allege is part of

the building storm water drainage system. Therefore, the instant lawsuit involves the same parties

and the same causes of action as the earlier filed lawsuits, is duplicative of the earlier filed lawsuits,

and must be dismissed.


        7       However, to the extent that the Court finds that the instant lawsuit is proper, which

Superior denies, it is respectfully requested that this motion be treated as one for summary judgment,

and the Complaint be dismissed as there is no question of material fact present.


        8       It is uncontroverted that Superior did not connect the 3-inch sanitary branch to the 4-

inch cast iron stack. It is uncontroverted that Superior did not contract to perform services with

respect to the 4-inch cast iron stack; and neither created nor modified the allegedly improper

connection.   It is uncontroverted that Superior’s work was limited to extending and relocating

preexisting sanitary pipes that were upstream from the allegedly improper connection, and installing

new and additional sanitary fixtures to pipes where sanitary fixtures previously existed.


        9.      Furthermore, it is uncontroverted that the plumbing plans furnished by Excalibur

identified the 4-inch cast iron stack as a sanitary stack; neither Excalibur, nor any other party,

contracted with Superior to verify that the existing connection of the 3-inch sanitary branch to the 4-

inch cast iron stack was proper, or that the 4-inch cast iron stack was in fact a sanitary stack as

indicated by the plumbing plans; and, in accordance with the law of this State, Superior was entitled

to and did reasonably rely on the sealed engineering plans provided by Excalibur, which were

developed by Eisenstein from as-built plans provided by RRS.

{00180103.DOC /}                                4
10.     The evidence establishes that Superior’s work was performed properly and did not

violate the applicable New York City codes. The evidence also makes clear that Superior performed

plumbing work at the Premises three years prior to the overflows, and thus the overflows occurred

too remotely to be actionable against Superior. Furthermore, the evidence makes clear that Superior

did not contract to perform ongoing plumbing maintenance at the Premises; was not asked to return

to the Premises in the three years since performing plumbing work at the Premises; and was not told

of any problems with the work or the plumbing system following the completion of the work.


        11.     Itis undisputed that the overflow was caused by a clog in the building drain located in

the basement. The evidence establishes that Superior did not perform work in the basement. The

Record further establishes that plumbing clogs are commonly the result of improper or infrequent

maintenance, and that RRS failed to maintain the plumbing system at the Premises. In contrast, there

is no evidence that the resultant damages were proximately caused by the installation of a toilet on

the third floor of the Premises or that Superior’s installation of a toilet and relocation of an existing

3-inch sanitary riser proximately caused the backup. Accordingly, plaintiffs’ claims and all claims

for common-law indemnification and contribution must be dismissed as against Superior.


        12.     Lastly, the RRS Plaintiffs’ claims must be dismissed since Superior did not perform

work pursuant to a contract with the RRS Plaintiffs, and, thus, had no duty to the RRS Plaintiffs.

Further, all claims for contractual indemnification or for breach of contract for failure to obtain

insurance must be dismissed since no such agreements exist.




{00180103.DOC /}
SCHEDULE       OF EXHIBITS

       EXHIBIT     A          Travelers Summons and Complaint dated May 16, 2011
       EXHIBIT     B:         Federal’s Summons and Complaint dated December 10, 2012
       EXHIBIT     C          Stipulation to Amend Travelers Complaint dated March 14, 2013
       EXHIBIT     D          Travelers Supplemental Summons and Amended Complaint dated
                              October 7, 2013
       EXHIBIT    E:          Order Joining Travelers and Federal Actions dated October 18, 2013
       EXHIBIT    F:         Note of Issues dated October 30, 2013
       EXHIBIT    G           RRS Plaintiffs Summons and Complaint dated January 6, 2014
       EXHIBIT    Ht          Philips Medical Answer to Complaint dated February 21, 2014
       EXHIBIT    I:          Excalibur Answer to Complaint dated March      11, 2014
       EXHIBIT    J:         Defective Request for Judicial Intervention dated March 17, 2014
       EXHIBIT    K:         Deposition transcript of Geoffrey Pierini
       EXHIBIT    L          Deposition transcript of Joseph Kerrigan
       EXHIBIT    M          Deposition transcript of Dr. Stanley Rosenfeld
       EXHIBIT    N          Department of State Record for CDSA
       EXHIBIT    O          RRS Subrogation Receipts
       EXHIBIT    P:         Affidavit of Joseph Kerrigan
       EXHIBIT    Q:         Affidavit of Leonard Williams
       EXHIBIT    R          Eisenstein Plans, drawings P-1 thru P-7, dated July 24, 2007
       EXHIBIT    S:         Superior’s Proposal and Amendments


                                  PROCEDURAL HISTORY

       13.     On or about May 16, 2011, Travelers commenced an action by filing a Summons and

Complaint. (Exhibit A).


       14.     On or about December 10, 2012, Federal commenced an identical action by filing a

Summons and Complaint.     (Exhibit B).


       15.     By stipulation dated March 3, 2013 (Exhibit C), Travelers filed a Supplemental

Summons and Amended Complaint dated October 7, 2013.         (Exhibit D).


       16.    Geoffrey Pierini, testifying on behalf of defendant, Excalibur, and Joseph Kerrigan,

testifying on behalf of defendant, Superior, each testified at an Examination Before Trial on



{00180103.DOC /}
September 11, 2014. (Exhibit K & Exhibit L). Dr. Stanley Rosenfeld, testifying on behalf of RRS,

testified at an Examination Before Trial on October 17, 2013. (Exhibit M). Attorneys for the RRS

Plaintiffs were present for the Examinations Before Trial of Geoffrey Pierini, Joseph Kerrigan, and

Dr. Rosenfeld, and were provided an opportunity to examine Geoffrey Pierini and Joseph Kerrigan

under oath. (Exhibit K & Exhibit L).


        17.      The Travelers and Federal actions were joined for purposes of discovery and trial in

an Order dated October 18, 2013 (Exhibit E)


        18.      Travelers and Federal each filed a Note of Issue on October 30, 2013.     (Exhibit F).


        19.      On or about January 6, 2014, the RRS Plaintiffs commenced an action by filing a

Summons and Complaint. (Exhibit G). Philips Medical served its Answer to the RRS Plaintiffs’

Complaint with Cross-Claims on or about February 21, 2014.          (Exhibit H).   Excalibur served its

Answer to the RRS Plaintiffs’ Complaint with Cross-Claims on or about March 11, 2014. (Exhibit

I). Upon information and belief, to date, Home Systems and Eisenstein have not served an Answer

to the RRS Plaintiffs’ Complaint.


        20.      On or about March 17, 2014, Philips Medical filed a defective Request for Judicial

Intervention in the instant lawsuit, which failed to identify the Travelers and Federal Actions as

related cases. (Exhibit J).


                                     STATEMENT OF FACTS

        Claims

        21.      There are commonalities in the ownership and management of RRS, CDSA, and

R&R.    (Exhibit M, p. 11, Ins. 17-15, p.12, Ins. 2-10, p. 34, Ins. 3-10).   RRS is a medical imaging


{00180103.DOC /}
practice that was owned      and operated by three partners: Dr. Alfred Rosenbaum,          Dr. Stanley

Rosenfeld, and Dr. Emily Sonnenblick. Dr. Sonnenblick left the practice in January 2013. (Exhibit

M, p. 11, Ins. 17-25; p. 12, Ins. 2-10). RRS leases and occupies the first three floors and basement of

the Premises. (Exhibit G).


        22.     CDSA is also a medical imaging practice that leases space at the Premises. (Exhibit

M, p. 48, Ins. 2-12; Exhibit G).    Dr. Alfred Rosenbaum is the chief executive officer of CDSA.

(Exhibit N).


        23.     The Premises is a six story building owned by R&R, a partnership formed by Dr.

Alfred Rosenbaum and Dr. Stanley Rosenfeld.        (Exhibit M, p. 19-20).


        24.     RRS received insurance benefit proceeds from Travelers and Federal, and accordingly

RRS subrogated its right to recover for the alleged property damage to Travelers and Federal. The

subrogation receipts are annexed hereto as Exhibit O.


        25.     Travelers, Federal, and the RRS      Plaintiffs each allege that Superior negligently

performed plumbing work at the Premises, resulting in two overflows of water and/or waste from the

subject toilet and resultant water damage.      (Exhibit M, p. 81, Ins. 16-25; Exhibit G, {J 58, 64;
Exhibit A; Exhibit B). Plaintiffs allege that the initial overflow occurred on April 18, 2011, and that

a subsequent overflow on April 23, 2011         was caused by the negligent management,         design,

installation, construction, inspection, maintenance, repair and/or renovation of the plumbing system.

(Exhibit G, {J 58, 64, Exhibit A, Exhibit B).


        26.     Philips   Medical    asserted   cross-claims    for   common-law      and   contractual

indemnification, contribution, and breach of contract for failure to procure insurance. (Exhibit H).


{00180103.DOC /}
Excalibur asserted cross-claims against Superior for common-law and contractual indemnification,

as well as contribution. (Exhibit I).


         27.          Upon   information and belief, to date, Home       Systems and Eisenstein have not

answered the RRS Plaintiffs’ Complaint, and thus, there are no cross-claims asserted by Home

Systems or Eisenstein against Superior.


    B.   The Project

         28.          In 2006, RRS was interested in acquiring new medical equipment for its practice,

including MRI and CT/PET scan equipment, and eventually agreed to lease equipment from Philips

Medical.       (Exhibit M, p. 54, Ins 1225, p 55 Ins 2-11).


         29.          In addition to the medical equipment leases, RRS and Philips Medical also entered

into a “Turnkey Construction Agreement”, whereby Philips Medical would supervise a general

contractor      who     would   renovate   the first three   floors of the premises   occupied   by RRS   to

accommodate the new medical imaging equipment (“the Project”). (Exhibit M, p. 55, Ins 21-25, p

56, Ins 2-4). RRS paid for the Project with a capital improvement loan from Philips Medical, which

RRS subsequently paid in full. (Exhibit M pp. 56-59).


         30.          Philips hired Excalibur to be the general contractor for the Project, and Philips

supervised the Project. (Exhibit K, p. 27, Ins. 7-22).


         31,          Dr. Rosenfeld testified that it was his understanding that the Turnkey Construction

Agreement was a full service agreement, and relied on the expertise of Philips Medical and Excalibur

to develop the scope of the project.         (Exhibit M p 61, Ins 5-17).   This included determining how

many bathrooms were needed on each floor, which Dr. Rosenfeld described as follows:


{00180103.DOC /}
So someone from Rosenbaum must have told someone from
                              Philips that they wanted six bathrooms; correct? Otherwise
                              they wouldn’t have put bathrooms in.

                              Somebody from Excalibur went over what we were planning
                              to do with the space and what the space was going to be used
                              for and said these toilets are existing. And they may remain.
                              Given what you want to use the space for and what the center
                              was going to be used for, you need two toilets here. And this
                              is where they should go.

(Exhibit M, p. 61, Ins. 21-25; p. 62, Ins. 2-13; see also, Exhibit K, p. 37, Ins. 21-25, p. 38, Ins. 2-22).


            32.        Prior to the commencement of the Project, RRS provided Excalibur with as-built

drawings that were developed by Arthur Minner (deceased) for a prior owner of the Premises.

(Exhibit M, p. 44, Ins. 24-25; p. 45 Ins 2-5; Exhibit K, p. 97, Ins. 15-2). Excalibur relied upon the

as-built plans in drafting its proposal to Philips Medical. (Exhibit K, p. 37, Ins. 9-20).


            33.        Excalibur retained Merle Eisenstein, AIA, (deceased) to act as the architect and

licensed design professional for the Project.            Excalibur and Philips Medical had both previously

worked with Mr. Eisenstein on several similar projects.           (Exhibit K, p. 93, Ins. 16-25; p. 94, Ins 2-9).

RRS provided Mr. Eisenstein with the as-built plans, and Mr. Eisenstein prepared plans for the

Project (“the Eisenstein Plans”).         (Exhibit K, p. 94, Ins. 16-20; p. 97, Ins. 15-23).     The Eisenstein

Plans are attached hereto as Exhibit R.


            34,        Excalibur subcontracted the plumbing work for the Project to Superior. (Exhibit K, p.

42, Ins. 2-9). To protect its reputation, Excalibur took care in selecting subcontractors to work on its

projects.         Excalibur ultimately hired Superior because Superior had worked with Excalibur in the

past or came highly recommended.             (Exhibit K, p. 44, Ins. 6-25; p. 45, Ins. 2-15).    Excalibur also

verified that Superior was licensed and insured.           (Exhibit K, p. 43, Ins. 18-25; p. 44, Ins. 2-5).



{00180103.DOC /}                                     10
35.       Excalibur provided the Eisenstein Plans to Superior.       (Exhibit K, p. 56, Ins 7-12).

Proposal #10224, dated November 7, 2007, was prepared by Superior based upon the Eisenstein

Plans (“the Proposal”). (Exhibit L, p. 23, Ins 12-21).         Excalibur hired Superior
                                                                                      to perform plumbing

work at the Premises pursuant to the Proposal.            (Exhibit K, p. 46, Ins 7-8, p. 86, Ins 15-18).


       C.   Superior did not connect the 3-inch sanitary branch to the 4-inch cast iron stack and did not

            perform work in the basement where the clog occurred.

            36.       As a preliminary matter, to explain the services performed by Superior certain

technical terms must be defined. A “stack” or “riser” is any pipe that runs vertically up and down. A

“branch” is a pipe that runs horizontally. (Exhibit P, 4).


            37.       Pursuant to the Proposal, Superior was hired to remove a pre-existing sink from the

third floor bathroom and relocate an existing 3-inch sanitary riser; install a new sink; and install a

toilet that was designed by Eisenstein to drain to the relocated 3-inch sanitary riser. (Exhibit L, p. 41-

42).

            38.       Mr. Kerrigan, president/owner of Superior and a New York City Licensed Master

Plumber, explained that the plumbing plans provided by Excalibur indicated that a 3-inch sanitary

riser ran from the third floor bathroom down through a wall on the second floor to the ceiling of the

first floor, where it connected to a 3-inch sanitary branch.            The 3-inch sanitary branch then ran

horizontally across the drop-ceiling of the first floor to a 4-inch cast iron stack in the wall of the

Premises.         (Exhibit L, p. 66, Ins. 7-25, p. 67, Ins. 2-14; Exhibit P, {ff 12-13; Exhibit Q, {| 7-8).


            39.       The negligence claimed by plaintiffs is the allegedly improper connection of the 3-

inch sanitary branch to the 4-inch cast iron stack, which plaintiffs claim was a storm water drainage



{00180103.DOC /}                                     11
stack and not a sanitary stack as depicted on the plans. (Exhibit G; Exhibit B; Exhibit D). However,

this connection was pre-existing, and the new work performed by Superior did not include the

connection or modification of the 3-inch sanitary branch to the 4-inch cast iron stack. (Exhibit P, §6).


        40.     Per the plans, Excalibur was moving the second floor wall through which the 3-inch

sanitary riser ran as part of the renovations on that floor, necessitating the relocation of the 3-inch

sanitary riser. (Exhibit L, p. 62, Ins. 5-13).


        41.     Mr. Kerrigan testified that prior to installing the sanitary fixtures and relocating the 3-

inch sanitary riser, he referred to the plans, noted that sanitary fixtures were already connected to the

3-inch sanitary riser, visually traced the 3-inch sanitary riser to the 3-inch sanitary branch, and the 3-

inch sanitary branch to the 4-inch cast iron stack. (Exhibit L, p. 81, Ins 15-25; p. 82, Ins. 2-4). This

in field observation was consistent with what was depicted on the plumbing plans. (Exhibit P, { 14-

15).

        42.     Superior relocated the 3-inch sanitary riser to the new second floor wall, and extended

the 3-inch branch to reach the relocated 3-inch sanitary riser. (Exhibit L, p. 66, Ins. 7-25, p 67, Ins.

2-14). Superior’s contract with Excalibur and the plans provided by Excalibur did not entail making

any alterations or modifications to the connection of the 3-inch sanitary branch to the 4-inch sanitary

stack, which was located in a wall of the Premises two rooms away from where Superior tied into the

3-inch sanitary branch. (Exhibit P, § 17; Exhibit S).


       43.      Mr. Kerrigan, referring to the Eisenstein Plans, testified as follows:


                Q       Now, we are talking about the third floor bathroom that we
                        circled earlier on Plaintiffs’ Exhibit 2. And I am referring to
                        the upper left-hand circle. Where there is a bathroom and


{00180103.DOC /}                                 12
there was a water closet or toilet installed. The sanitary line
                          for that specific toilet, did you install that sanitary line for that
                          toilet?

                          Yes.

                          And what did you tie that specific sanitary line into?

                          I extended an existing sanitary line that was already there that
                          was removed during when the fixtures were removed and the
                          riser was relocated during the course of this job.
                                             ook

                          1 am not sure how you want to designate it. There was a 3-
                          inch sanitary up-and-down line that they call it on the drawing
                          right in the same general area of where the toilet is. There
                          had been a wall in one place on the second floor where it
                          came up and it had to be -- the wall was no longer going to be
                          there, so the line had to be removed.

                                             sR

                          The connection here. You can see where we removed it. It
                          was existing up over here. We removed the existing up and
                          relocated to where it says "new up”. This here is the branch
                          (indicating).
                                             RR

                          This is actually on the first floor.     The stack went -- or the
                          branch went up through the second floor and into the floor of
                          the third floor. The connection was in the ceiling of the first
                          floor.

                                             Fok

                          And you can see it here as having removed the existing 3-inch
                          sanitary up. And this here says "new 3-inch S up" is the new
                          sanitary up. And this here was the existing branch line
                          because it came over to here (indicating). And this here in the
                          center is the stack, the sanitary stack [colloquy omitted].

(Exhibit L, pp. 60-67).




{00180103.DOC /}                                   13
44,   Importantly, Superior did not alter the preexisting 4-inch cast iron stack in any

manner during the course of the work, and did not remove or alter the pre-existing 3-inch branch

connection to the 4-inch cast iron stack (Exhibit P,      6, 17). In this regard, Mr. Kerrigan testified as

follows:


                         Sure. Isn't it true that there was a sanitary line that tied into a
                         storm riser at this building?

                         Yes.

                         Okay. Did you make that connection?

                         No.

                 Q       Who did?

                 A       Ihave no idea.

(Exhibit L, p. 70, Ins.24-25; p. 71, Ins. 2-8).


           45.   With regard to the inspections Superior performed during the course of its work under

the proposal, Mr. Kerrigan testified as follows:


                 Q       In terms of your protocol regarding inspecting your job,
                         making sure that it’s done properly, you said that you would
                         inspect the job every day. Is that correct?

                 A       I believe I inspected it every day. That would be protocol.

(Exhibit L, p. 126, Ins. 16-23).


           46.   Following Superior’s completion of work under the proposal, Superior did not

perform any additional plumbing work at the Premises until after the April 11, 2011 overflows and

received no complaints regarding the plumbing work performed by Superior during that time.

(Exhibit P, 49 20-21).


{00180103.DOC /}                                  14
D. The Incident

        47.      On the morning of Monday, April 18, 2011, three years after Superior completed its

work at the Premises, RRS staff discovered water overflowing from the third floor toilet. (Exhibit M,

p. 81, Ins. 16-25),

        48.      RRS contacted Excalibur to complain that a third floor toilet was overflowing.

(Exhibit K, p. 107, Ins. 4-10). Upon arrival Mr. Pierini contacted Serv Pro to clean up the water.

(Exhibit K, p. 107, Ins 12-15; p. 108, Ins 3-7). Noting that the water was overflowing from a toilet

on the third floor, Mr. Pierini assumed the drain was clogged and called a plumber to investigate the

cause of the backup.     Mr. Pierini testified that the plumber determined that “an enormous clog

somewhere down in the basement” was causing water to backup and overflow from the third floor

toilet. (Exhibit K, pp. 59-61).


        49.      The plumber cleared the clog, and the water drained.         (Exhibit K, p. 74, 2-5).

Excalibur did not instruct the plumber to trace the lines to determine if there was an issue with the

configuration of the plumbing. (Exhibit K, p. 75, Ins. 7-12).


        50.     A second overflow occurred on April 23, 2011.        (Exhibit K, p. 14-17).   Excalibur

again contacted the plumber who cleared the clog on April 18, 2011, and again asked him to snake

the line and clear the clog.   Excalibur did not instruct the plumber to trace the lines to determine if

there was an issue with the configuration of the plumbing.      (Exhibit K, p. 76-77).


        Sl.     After the plumber cleared the clog, Excalibur contacted Superior to further investigate

the cause of the overflows. (Exhibit K, p. 77, Ins. 9-18).     Superior then worked with Excalibur to

trace the lines. (Exhibit L, p. 107, Ins. 17-25; p. 108 Ins. 2-3).



{00180103.DOC /}                                15
52.    Superior performed a visual trace of any exposed piping, but was unable to reach a

conclusion. (Exhibit L, p 109, Ins 6-8).   Superior then used a colored dye to trace the piping and it

was determined that the 4-inch cast iron stack also drained storm water from the roof. (Exhibit L, p

109, Ins. 15-25; p. 110, Ins 2-4). Tracing a plumbing system can take a considerable amount of time

and manpower and is not normally, and was not, included in the cost of work performed by Superior

at the Premises. (Exhibit P, { 25; Exhibit Q, { 12).


    E.   Superior’s Work   Was Performed     in Accordance with its Contract with Excalibur,       the

         Eisenstein Plans, and Applicable Codes.

         53.    According to Mr. Leonard Williams, a New York City Licensed Master Plumber with

forty years of plumbing experience, including experience in the drafting and practical application of

New York City Plumbing Codes, the work performed by Superior was performed correctly and in

accordance with applicable New York City building codes.       (Exhibit Q, § 3).


         54.    It is the opinion of Mr. Williams that Superior reasonably relied on the plumbing

plans prepared by Merle Eisenstein, the licensed design professional, and that Superior’s visual

verification of the infield conditions were reasonable under the circumstances and in accordance with

the custom and practice of the plumbing industry.       (Exhibit Q, § 22). There was no reason for

Superior to question whether the pre-existing connection of the 3-inch sanitary branch to the 4-inch

cast iron stack was proper based on the plans and Superior’s infield observations. (Exhibit Q, ff 13).


         55.    The Proposal specified the limited scope of work that Superior was hired to perform

and explicitly states that all work included in the Proposal is limited to the Eisenstein Plans dated

July 24, 2007, except as otherwise indicated, and did not provide for the inspection of the entire

plumbing system in the 6-story building. (Exhibit P, §§ 9-10, 17, 25; Exhibit S). The Proposal does

{00180103.DOC /}                              16
not contain any indemnification agreement or warranties. (Exhibit K, p 87 11-25, p. 88, In. 2, Exhibit

S, Exhibit P, 911). Moreover, the scope of work in the proposal does not include any maintenance

services whatsoever.    (Exhibit P, § 11; Exhibit S). Any changes to the work that Superior was to

perform under the Proposal were memorialized in subsequent amendments to the Proposal. (Exhibit

K, p. 88, Ins. 23-25; p 89, Ins. 2-3).


           56.   Superior did not have the authority to make any changes to the plumbing system or

work on areas that were not specified in the plumbing designs. (Exhibit L, p. 81; Ins 11-13). In this

regard, Mr. Pierini testified as follows:


                 Q      Mr. Pierini, if Superior ran into an issue on the job site and
                        needed to make a change to the work they were performing,
                        who would they have to speak to perform those changes?

                        If they were to change the design, I would assume they would
                        file some kind of RFI with a design professional and get some
                        kind of approval in writing.

                        Would they have to clear that issue with Excalibur or anyone
                        else at the building first?

                        Yes. I would assume it would be discussed with the project
                        supervisor, notify the architect or engineer.

(Exhibit K, p. 91, Ins. 11-25; p. 92, In. 2; see also, Exhibit L, p. 50, In. 25; p. 51, Ins 2-6).


                 357.   Superior did not enter into any agreements with any party or non-party with

respect to the Premises outside of the aforementioned Proposal between Excalibur and Superior.

(Exhibit P, {J 7, 11). Dr. Rosenfeld testified that R&R did not have any maintenance agreement

with respect to the Premises.    With regards to maintenance agreements, Dr. Rosenfeld testified as

follows:




{00180103.DOC /}                                17
A         The only maintenance agreement we had with the building is
                             with the heating and air-conditioning people which up until
                             very recently was a subsidiary of Excalibur.

(Exhibit M, p. 191, 2-9).

         58.       Importantly, RRS did not enter into any maintenance agreements with anyone for the

plumbing or roof drains, storm water system, or plumbing system. (Exhibit M p. 191, Ins 23-25; p.

192, Ins. 2-14).       Dr. Rosenfeld testified as follows:


                   Q         Do you have any service contracts outside the elevator and
                             HVAC contracts?

                   A         Not that I know of.

(Exhibit M, p. 192, Ins. 15-18).


         59.       According to Mr. Williams, the failure to maintain building plumbing systems

commonly results in overflows such as those that occurred at the Premises in April 2011. (Exhibit

Q, 4 15). Furthermore, the clog in the basement and resultant overflow could have occurred even if

Superior had performed no work at the Premises since sanitary fixtures were already connected to the

3-inch sanitary riser and the 3-inch sanitary branch was previously connected to the 4-inch cast iron

stack. (Exhibit Q, § 21).


    F.   Conclusion


         60.       The instant lawsuit involves the same parties and the same causes of action as the

earlier filed lawsuits, is duplicative of the earlier filed lawsuits, and must be dismissed.



         61.       Further, the allegedly improper connection of the sanitary system to the storm water

system was a pre-existing condition.         Superior did not make the alleged improper connection.   At


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most, Superior extended a pre-existing sanitary branch line and relocated a sanitary riser which

already had a sink installed, and installed a toilet on said line. Superior had no duty or obligation to

inspect the entire plumbing system in the Premises or trace out pre-existing lines already connected

to sanitary fixtures, and certainly had no duty to conduct dye testing as asserted by plaintiffs.


        62.       Excalibur retained Superior to perform plumbing work at the Premises specified in

the Proposal prepared by Superior and accepted by Excalibur in accordance with the plans developed

by Merle Eisenstein.      This work included the relocation of an existing sanitary line, and the

connection of a new third floor toilet to the relocated sanitary line. Nearly three years after Superior

completed its work, the toilet overflowed, causing damage to the Premises.          However, there is no

indication that Superior’s installation of the toilet or relocation of the sanitary pipe were deficient in

any way.      Moreover, it was reasonable for Superior to rely on the plans provided by Excalibur and

prepared by Merle Eisenstein in the performance of its work.


        WHEREFORE, it is respectfully requested that the within Motion be granted in its entirety

and the plaintiffs’ Complaint and any cross-claims be dismissed, together with such other and further

relief as this Court may deem just and proper.


Dated: Garden City, New York
        April 4, 2014
                                                           —   Cl
                                                               HARD B. CAMARDA




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