Preview
FILED: BRONX COUNTY CLERK 08/19/2021 01:19 PM INDEX NO. 811295/2021E
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/19/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
Ca. B., Cat. B., and Cay. B., infants under the age
of 14 years, by their mother and natural guardian,
CRYSTAL BARNES, and CRYSTAL BARNES, individually,
Index No.:
Date of Filing:
Plaintiff(s),
-against-
SUMMONS
WITH NOTICE
1302 ROSEDALE ASSOCIATES LLC,
Defendant(s).
----------------------------------------------------------x
TO THE ABOVE-NAMED DEFENDANT(S)
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
Plaintiff(s)'
Notice of Appearance, on the Attorney(s) within (20) days after the service of this
summons, exclusive of the date of service (or within thirty (30) days after the service is
complete if this Summons is not personally delivered to you within the State of New York);
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 with interest and cost from the date of occurrence.
Dated: Bronx, New York
August 19, 2021
Yours, etc.
LESCH & LESCH, P.C.
By:
GARY E. CH, ESQ.
Attorneys for Plaintiff(s)
860 Grand Concourse, Suite 2M
Bronx, New York 10451
(718) 292-1131
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Defendant(s)'
Address:
1302 ROSEDALE ASSOCIATES LLC - Served
by the Secretary of State Only
1510 St Peters Avenue
Bronx, New York 10461
1302 Rosedale Avenue
Bronx, New York 10472
VENUE: Plaintiff(s) designate(s) Bronx County as the place of trial. The basis of this
designation is:
Plaintiff(s)'
Residence in Bronx County.
1302 Rosedale Avenue, County of Bronx
NOTICE: The nature of this action is: Personal Injury
The relief sought is: As demanded in complaint
Upon your failure to appear, judgment will be taken against you by default for the sum as
demanded in complaint with interest from December 2019 until the present, and the costs of
this action.
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
-----------------------------------x
Ca. B., Cat. B., and Cay. B., infants under the age
of 14 years, by their mother and natural guardian,
CRYSTAL BARNES, and CRYSTAL BARNES, individually,
VERIFIED COMPLAINT
Index No.:
Plaintiff(s),
- against -
1302 ROSEDALE ASSOCIATES LLC,
Defendant(s).
------------------ ---------------------------------x
Plaintiff(s), Ca. B., Cat. B., and Cay. B., infants under the age of 14 years, by their
mother and natural guardian, CRYSTAL BARNES, and CRYSTAL BARNES, individually
by their attorneys, LESCH & LESCH P.C., complaining of the Defendant(s), 1302
ROSEDALE ASSOCIATES LLC, sets forth the following, upon infonnation and belief:
1. That at all times herein mentioned, Plaintiff(s) were and still are residents of
the County of Bronx, City and State of New York.
2. That at all times herein mentioned, the Defendant(s), 1802 ROSEDALE
ASSOCIATES LLC was and still is a domestic limited liability company duly authorized to
do business in the State of New York.
3. That at all times herein mentioned, the Defendant(s), 1802 ROSEDALE
ASSOCIATES LLC maintained a principal place of business in the County of Bronx, City
and State of New York.
4. That at all times herein mentioned and from December 2019 until the
present, the Defendant(s), 1302 ROSEDALE ASSOCIATES LLC owned the premises and
appurtenances and fixtures thereto, located at 1302 Rosedale Avenue, County of Bronx, City
and State of New York.
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5. That at all times herein mentioned and on December 2019 until the present,
the Defendant(s), 1302 ROSEDALE ASSOCIATES LLC by its agents, servants and/or
employees managed the aforesaid premises.
6. That at all times herein mentioned and on December 2019 until the present,
the Defendant(s), 1302 ROSEDALE ASSOCIATES LLC by its agents, servants and/or
employees maintained the aforesaid premises.
7. That at all times herein mentioned and on December 2019 until the present,
the Defendant(s), 1802 ROSEDALE ASSOCIATES LLC by its agents, servants and/or
employees controlled the aforesaid premises.
8. That at all times herein mentioned and on December 2019 until the present,
the Defendant(s), 1802 ROSEDALE ASSOCIATES LLC by its agents, servants and/or
employees operated the aforesaid premises.
9. That at all times herein mentioned and on December 2019 until the present,
the Defendant(s), 1302 ROSEDALE ASSOCIATES LLC by its agents, servants and/or
employees supervised the aforesaid premises.
10. That at all times herein mentioned and on Decernber 2019 until the present,
the Defendant(s), 1302 ROSEDALE ASSOCIATES LLC by its agents, servants and/or
employees inspected the aforesaid premises.
11. That at all times herein mentioned and on December 2019 until the present,
the Defendant(s), 1802 ROSEDALE ASSOCIATES LLC was the lessor of the aforesaid
premises.
12. The building commonly known as 1302 ROSEDALE AVENUE in the
County of Bronx, City and State of New York is rented, leased, let or hired out to be
occupied as a residence of three or more families living independent of each other.
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13. At all times mentioned herein, on or about December 2019 until the present,
Plaintiff(s), CRYSTAL BARNES, lawfully leased from the Defendant(s), 1302 ROSEDALE
ASSOCIATES LLC, the apartment known as 3a in the aforementioned building
14. On December 2019 until the present, while infant Plaintiff(s), Ca. B., Cat. B.,
Cay. B., and CRYSTAL BARNES, were lawfully about the aforesaid premises, they were
caused to sustain serious and pennanent injuries as a result of the bed bug infestation and of
being bitten by said vennin.
15. The above-mentioned occurrence and the result thereof, were caused by the
Defendant(s)'
negligence of the Defendant(s) and/or said agents, servants, employees and/or
licensees in the ownership, operation, management, supervision, maintenance and control of
the aforesaid premises.
16. That Defendant(s) had actual notice of this defective condition.
17. That Defendant(s) had constructive notice of this defective/ defective
condition.
18. That Defendant(s) caused and/or created dangerous /defective condition sited
above.
19. That on or prior to December 2019, Defendant(s) had actual notice of the
condition described above and received violations from the New York City Housing
Preservation and Development for this condition.
20. That on December 2019 until the present, Defendant(s), and/or said
Defendant(s)'
servants, agents, employees and/or licensees were negligent in that they
breached their duty to keep the aforementioned premises in a safe, proper and secure
condition, in good repair and free from obstruction, defect, nuisance, and hazardous,
dangerous and trap like conditions.
Defendant(s)'
21. That upon information and belief, Defendant(s) and/or said
servants, agents, employees and/or licensees had actual/or constructive notice of the
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aforementioned obstructive, defect, nuisance, and hazardous, dangerous and trap like
condition.
22. That the amount of damage sustained by Infant Plaintiff(s), Ca. B., Cat. B.,
Cay. B and CRYSTAL BARNES exceeds the jurisdictional limits of the lower courts which
would have jurisdiction in all causes of action alleged in this complaint.
AS AND FOR A FIRST CAUSE OF ACTION
ON BEHALF OF PIAINTIFF(S) CRYSTAL BARNES
23. Plaintiff(s) CRYSTAL BARNES repeats and reiterates each and every
"1" "22"
allegation in paragraph through as set forth fully and at length herein.
24. The above-mentioned occurrence and the results thereof, were caused by the
Defendant(s)'
negligence of the Defendant(s) and/or said agents, servants, employees and/or
licensees in the ownership, operation, management, supervision, maintenance and control of
the aforesaid premises.
25. That no negligence on the part of the Plaintiff(s) contributed to the occurrence
alleged herein in any manner whatsoever.
26. That by reason of the foregoing, Plaintiff(s), CRYSTAL BARNES, was caused
to sustain serious injuries and to have suffered pain, shock and mental anguish; that these
injuries and their effects will be permanent; and as a result of said injuries Plaintiff(s) has been
caused to incur, and will continue to incur, expenses for medical care and attention; and, as a
Plaintiff(s)'
further result Plaintiff(s) was, and will continue to be, rendered unable to perform
normal activities and duties and has sustained a resultant loss therefrom.
AS AND FOR A SECOND CAUSE OF ACTION
ON BEHALF OF INFANT PLAINTIFF(S) Ca. B.
27. Infant Plaintiff(s) Ca. B. repeats and reiterates each and every allegation in
"1" "26"
paragraph through as set forth fully and at length herein.
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28. The above-mentioned occurrence and the results thereof, were caused by the
Defendant(s)'
negligence of the Defendant(s) and/or said agents, servants, employees and/or
licensees in the ownership, operation, management, supervision, maintenance and control of
the aforesaid premises.
29. That no negligence on the part of the Plaintiff(s) contributed to the occurrence
alleged herein in any manner whatsoever.
30. That by reason of the foregoing, Infant Plaintiff(s) Ca. B., was caused to
sustain serious injuries and to have suffered pain, shock and mental anguish; that these
injuries and their effects will be permanent; and as a result of said injuries Plaintiff(s) has been
caused to incur, and will continue to incur, expenses for medical care and attention; and, as a
Plaintiff(s)'
further result Plaintiff(s) was, and will continue to be, rendered unable to perfonn
nonnal activities and duties and has sustained a resultant loss therefrom.
AS AND FOR A THIRD CAUSE OF ACTION
ON BEHALF OF INFANT PLAINTIFF(S) Cat. B.
31. Infant Plaintiff(s) Cat. B. repeats and reiterates each and every allegation in
"1" "30"
paragraph through as set forth fully and at length herein.
32. The above-mentioned occurrence and the results thereof, were caused by the
Defendant(s)'
negligence of the Defendant(s) and/or said agents, servants, employees and/or
licensees in the ownership, operation, manageinent, supervision, maintenance and control of
the aforesaid premises.
33. That no negligence on the part of the Plaintiff(s) contributed to the occurrence
alleged herein in any manner whatsoever.
34. That by reason of the foregoing, Infant Plaintiff(s) Cat. B., was caused to
sustain serious injuries and to have suffered pain, shock and mental anguish; that these
injuries and their effects will be permanent; and as a result of said injuries Plaintiff(s) has been
caused to incur, and will continue to incur, expenses for medical care and attention; and, as a
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Plaintiff(s)'
further result Plaintiff(s) was, and will continue to be, rendered unable to perform
normal activities and duties and has sustained a resultant loss therefrom.
AS AND FOR A FOURTH CAUSE OF ACTION
ON BEHALF OF INFANT PLAINTIFF(S) Cay. B.
35. Infant Plaintiff(s)Cay. B. repeats and reiterates each and every allegation in
"1" "34"
paragraph through as set forth fully and at length herein.
36. The above-mentioned occurrence and the results thereof, were caused by the
Defendant(s)'
negligence of the Defendant(s) and/or said agents, servants, employees and/or
licensees in the ownership, operation, management, supervision, maintenance and control of
the aforesaid premises.
37. That no negligence on the part of the Plaintiff(s) contributed to the occurrence
alleged herein in any manner whatsoever.
38. That by reason of the foregoing, Infant Plaintiff(s) Cay. B., was caused to
sustain serious injuries and to have suffered pain, shock and mental anguish; that these
injuries and their effects will be permanent; and as a result of said injuries Plaintiff(s) has been
caused to incur, and will continue to incur, expenses for medical care and attention; and, as a
Plaintiff(s)'
further result Plaintiff(s) was, and will continue to be, rendered unable to perform
normal activities and duties and has sustained a resultant loss therefrom.
AS AND FOR A FIIiTH CAUSE OF ACTION FOR
VIOLATION OF RPL $235-b
"1"
39. Plaintiff(s) repeat and re-allege each and every allegation in paragraph
"38"
through as set forth fully and at length herein.
40. That on or about December 2019 until the present, at the aforementioned
location, Plaintiff(s) has been subjected to conditions that are dangerous, hazardous and
detrimental to their health, and safety.
41. That Defendant(s) were given notice of the condition.
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42. That the aforementioned condition was not introduced to the subject
premises through any fault of Plaintiff(s).
43. That Defendant(s) were strictly liable for the condition in the premises, and
responsible for taking reasonable actions to eliminate the condition.
44. That the condition continues and Defendant(s) failed to remedy it.
Plaintiff(s)'
45. That the presence of bed bugs in the apartment constitutes a
breach of their warranty of habitability.
46. By reason of the foregoing, Plaintiff(s) sustained the damages alleged herein.
47. Accordingly, Plaintiff(s) is entitled to compensatory damages, punitive
damages and reasonable attorney's fees and costs.
AS AND FOR A SIXTH CAUSE OF ACTION FOR
RECKLESS CAUSE OF ACTION OF PRIOR NOTICE
48. Plaintiff(s) repeat and re-allege each and every allegation contained in
"1" "47"
paragraph through as set forth fully and at length herein.
49. Upon information and belief, that at all times heretofore mentioned, the
Defendant(s) were under the non-delegable duty, pursuant to the laws of the State of New
York and the City of New York to maintain the building in a safe and proper condition.
50. That on or about December 2019, Defendant(s) were on notice of a bed bug
infestation in the building and took no steps to remedy the condition, illegally delegated their
duty to remedy the conditions to individual tenants, and acted recklessly in allowing the
Plaintiff(s)'
condition to spread throughout the building including apartment causing damage
and harm to Plaintiff(s).
Defendant(s)'
51. That as a direct and proximate result of actions and failure to
act, Plaintiff(s) sustained the damages alleged herein.
52. Accordingly, Plaintiff(s) is entitled to compensatory damages, punitive
damages and reasonable attorney's fees and costs.
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AS AND FOR A SEVENTH CAUSE OF ACTION FOR
CONSTRUCTIVE EVICITON
53. Plaintiff(s) repeat and re-allege each and every allegation contained in
"1" "52"
paragraph through as set forth fully and at length herein.
Defendant(s)'
54. That the wrongful acts and omission has substantially and
materially deprived the Plaintiff(s) of the beneficial use and enjoyment of their apartment.
55. By reason of the foregoing, Plaintiff(s) sustained the damages alleged herein.
56. Accordingly, Plaintiff(s) is entitled to compensatory damages, punitive
damages and reasonable attorney's fees and costs.
AS AND FOR AN EIGHT CAUSE OF ACTION FOR INTENTIONAI/
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
57. Plaintiff(s) repeat and re-allege each and every allegation contained in
"1" "56"
paragraph through as set forth fully and at length herein.
Defendant(s)'
58. That conduct was extreme and outrageous, and it caused
Plaintiff(s) to suffer mental and emotional distress.
Plaintiff(s)'
59. That Defendant(s) intended to cause or recklessly caused mental
and emotional distress.
60. By reason of the foregoing, Plaintiff(s)