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FILED: NEW YORK COUNTY CLERK 10/12/2016 07:00 PM INDEX NO.

158613/2016
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 10/12/2016

SUPREME COURT OF THE STATE OF NEW YORK


COUNTY OF NEW YORK

FIREMAN’S FUND INSURANCE COMPANY


A/S/O SIMON NAPARSTEK Index No.
777 San Marin Drive
Novato, CA 94945 Date of filing with Clerk of
Plaintiff, the Court:
-against-

217 TRUST UTA JANUARY 22, 2013 SUMMONS


217 East 62nd Street
New York, NY 10065
and The basis for venue: events
JOHN DOE, AS TRUSTEE OF giving rise to this action
217 TRUST UTA JANUARY 22, 2013 occurred in this County.
and
CHRISTOPHER CORNELL
217 East 62nd Street
New York, NY 10065
and
VICKY CORNELL
217 East 62nd Street
New York, NY 10065
and
PUNCHLIST INCORPORATED
462 Broadway | Third Floor
New York, NY 10013
and
VIR BUILERS, INC.
35-18 37th Street | Suite 1L
Long Island City, NY 11101
and
PETRACCA DESIGN & ENGINEERING, P.C.
199 Derby Place
Smithtown, NY 11787
Defendants.

TO: 217 TRUST UTA JANUARY 22, 2013 and JOHN DOE, AS TRUSTEE OF 217
TRUST UTA JANUARY 22, 2013 and CHRISTOPHER CORNELL and VICKY
CORNELL and PUNCHLIST INCORPORATED and VIR BUILERS, INC. and
PETRACCA DESIGN & ENGINEERING, P.C.

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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 summons, to serve a notice of

appearance, on Plaintiff’s Attorney within 20 days after the service of this summons, exclusive

of the day of service (or within 30 days after the services 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.

/s/ V. Kushnir
Date: 10/12/2016 By: ____________________
Vlad Kushnir, Esq.
VB Kushnir, LLC
vk@vbklaw.com

1330 Avenue of the Americas | Suite 23A


New York, NY 10019
P: 212-653-0392 | F: 888-470-2704

Please Rely To Philadelphia Address:

1735 Market Street | Suite 3750


Philadelphia, PA 19103
P: 267-507-6078 | F: 888-470-2704

/s/ M. Vaccaro
Date: 10/12/2016 By: ____________________
Michael Vaccaro, Esq.
Kearns & Duffy, P.C.
mcvaccaro@kearnsduffylaw.com
3648 Valley Road
Liberty Corner, NJ 07938
P: 908-647-7773 | F: 908-647-2314
TO:

217 TRUST UTA JANUARY 22, 2013


217 East 62nd Street
New York, NY 10065
and
JOHN DOE, AS TRUSTEE OF
217 TRUST UTA JANUARY 22, 2013

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and
CHRISTOPHER CORNELL
217 East 62nd Street
New York, NY 10065
and
VICKY CORNELL
217 East 62nd Street
New York, NY 10065
and
PUNCHLIST INCORPORATED
462 Broadway | Third Floor
New York, NY 10013
and
VIR BUILERS, INC.
35-18 37th Street | Suite 1L
Long Island City, NY 11101
and
PETRACCA DESIGN & ENGINEERING, P.C.
199 Derby Place
Smithtown, NY 11787

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK

FIREMAN’S FUND INSURANCE COMPANY


A/S/O SIMON NAPARSTEK Index No.
777 San Marin Drive
Novato, CA 94945 COMPLAINT
Plaintiff,
-against-

217 TRUST UTA JANUARY 22, 2013


217 East 62nd Street
New York, NY 10065
and
JOHN DOE, AS TRUSTEE OF
217 TRUST UTA JANUARY 22, 2013
and
CHRISTOPHER CORNELL
217 East 62nd Street
New York, NY 10065
and
VICKY CORNELL
217 East 62nd Street
New York, NY 10065
and
PUNCHLIST INCORPORATED
462 Broadway | Third Floor
New York, NY 10013
and
VIR BUILERS, INC.
35-18 37th Street | Suite 1L
Long Island City, NY 11101
and
PETRACCA DESIGN & ENGINEERING, P.C.
199 Derby Place
Smithtown, NY 11787
Defendants.

COMPLAINT

Plaintiff, by and through its attorneys, brings this Civil Action and by way of this

Complaint against Defendants aver as follows:

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PARTIES

1. Plaintiff is an insurance company with a principal place of business set forth on

the caption above.

2. Upon information and belief, Defendant 217 TRUST UTA JANUARY 22, 2013

(“Trust”) is the owner of the property located at 217 East 62nd Street, City of New York, County

of New York, State of New York (“Defendants’ Property”).

3. Defendant JOHN DOE (“Doe”) is the trustee of Trust, whose identity is currently

unknown.

4. Upon information and belief, Defendants CHRISTOPHER CORNELL and

VICKY CORNELL (collectively “Cornell”) are the beneficiaries of Trust and adult individuals

who reside at the address set forth on the caption above.

5. Upon information and belief, Defendant PUNCHLIST INCORPORATED

(“Punchlist”) is a New York corporation with a principal place of business set forth on the

caption above.

6. Upon information and belief, Defendant VIR BUILERS, INC. (“VIR”) is/was a

New York corporation with a principal place of business set forth on the caption above.

7. Upon information and belief, Defendant PETRACCA DESIGN &

ENGINEERING, P.C. (“PDE”) is a New York professional corporation with a principal place of

business set forth on the caption above.

8. Upon information and belief, at all times relevant and material hereto, Defendants

Punchlist and VIR were in the construction, demolition and/or excavation business.

9. Upon information and belief, at all times relevant and material hereto, Defendant

PDE was in the business of providing architectural engineering services.

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PERSONAL JURISDICTION AND VENUE

10. Upon information and belief, at all times relevant and material hereto, Defendants

were engaged in various activities that allow this Court to exercise personal jurisdiction over

Defendants pursuant to Section 302 of New York Civil Practice Law.

11. The case is properly venued in this County because this is the county where the

below-described incident, acts, and omissions occurred.

GENERAL ALLEGATIONS

12. Prior to November 2014, Plaintiff issued a policy of insurance with respect to a

residential property of Simon Naparstek (“Insured”) located at 215 East 62nd Street, City of New

York, County of New York, State of New York (“Plaintiff’s Property”).

13. Defendants’ Property and Plaintiff’s Property are/were adjacent to each other.

14. Upon information and belief, sometime in 2014 and 2015, Defendants Doe, Trust

and/or Cornell hired Defendants Punchline and VIR to conduct various construction, excavation

and/or demolition work at Defendants’ Property.

15. Upon information and belief, prior to November 2014, Defendant PDE was hired

by Defendant Doe and/or Defendant Trust and/or Defendant Cornel and/or Defendant Punchline

and/or Defendant VIR to prepare architectural/engineering plans and blueprints with respect to

said construction, excavation and/or demolition work and/or to supervise said construction,

excavation and/or demolition work at Defendants’ Property.

16. In November 2014, Plaintiff’s Property sustained serious structural damage and

Insured suffered various losses and expenses as a result of said structural damage, in excess of

$25,000.00.

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17. Upon information and belief, said damage was caused by Defendants’ negligence

and carelessness described herein below.

18. Pursuant to the terms of the insurance policy issued by Plaintiff to Insured, on

account of said losses and damage, Plaintiff made payments to Insured in excess of $25,000.00.

19. By virtue of the aforesaid payments, pursuant to the aforesaid insurance policy,

and by operation of law, Plaintiff is subrogated to the rights of Insured with regard to the

aforementioned damage and losses.

COUNT I – PLAINTIFF v. DEFENDANTS PUNCHLINE and VIR


[NEGLIGENCE]

20. Plaintiff incorporates the allegations of all previous paragraphs hereof as though

same were fully set forth at length herein.

21. At all times relevant and material hereto, Defendants Punchline and VIR owed a

duty to exercise reasonable care in performing their work, and to avoid creating the risk of

damage to adjacent properties, including Plaintiff’s Property.

22. Upon information and belief, the occurrence and the subsequent damage as

described herein were the direct and proximate result of the negligence, carelessness, and

negligent acts and omissions of Defendants Punchline and VIR in:

(a) carelessly and negligently conduction construction, excavation and demolition


work at Defendants’ Property;

(b) failing to perform their construction, excavation and/or demolition work with
care;

(c) performing their construction, excavation and/or demolition work in a manner


that caused damage to Plaintiff’s Property;

(d) failing to properly reinforce walls at (or adjacent to) their jobsite;

(e) failing to make sure proper underpinning was done at (or adjacent to) their
jobsite;

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(f) failing to follow the plans, blueprints, instructions and recommendations
provided by Defendant PDE;

(g) providing improper support for excavation and underpinning;

(h) causing differential settlement;

(i) failing to properly protect Plaintiff’s Property;

(j) failing to monitor adjacent structures, including Plaintiff’ Property;

(k) performing their work in a manner that compromised the integrity of


Plaintiff’s Property;

(l) failing to conduct pre-excavation and pre-demolition inspections;

(m) failing to comply with applicable codes, laws, regulations, and industry
standards; and

(n) failing to properly hire, train, supervise and/or oversee their personnel and
contractors.

23. The negligence and carelessness of the agents, servants, workmen and/or

employees of Defendants Punchline and VIR which occurred within the course and scope of said

employment and/or agency with said Defendants is imputed upon said Defendants and said

Defendants are liable for same.

24. As a direct and proximate result of said negligence, the Insured suffered damage

in excess of $25,000.00.

WHEREFORE, Plaintiff a/s/o Insured demands judgment in its favor and against

Defendants Punchline and VIR in excess of $25,000.00, together with interests, costs of suit, and

any other relief this Honorable Court deems just and proper.

COUNT II – PLAINTIFF v. DEFENDANTS PUNCHLINE and VIR


[VIOLATION OF BUILDING AND ADMINISTRATIVE CODES]

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25. Plaintiff incorporates the allegations of all previous paragraphs hereof as though

same were fully set forth at length herein.

26. The negligent acts and omissions by Defendants Punchline and VIR described

above constitute violations of the NYC Administrative Code and NYC Building Code.

27. As a direct and proximate result of said violations, Insured suffered damage in

excess of $25,000.00.

WHEREFORE, Plaintiff a/s/o Insured demands judgment in its favor and against

Defendants Punchline and VIR in excess of $25,000.00, together with interests, costs of suit, and

any other relief this Honorable Court deems just and proper.

COUNT III – PLAINTIFF v. DEFENDANTS DOE, TRUST and CONNELL


[NEGLIGENCE]

28. Plaintiff incorporates the allegations of all previous paragraphs hereof as though

same were fully set forth at length herein.

29. At all times relevant and material hereto, Defendants Doe, Trust and Connell

owed a duty to exercise reasonable care in selecting, hiring and monitoring their contractors, and

to avoid creating the risk of damage to adjacent properties, including the Plaintiff’s Property.

30. Upon information and belief, the occurrence and the subsequent damage as

described herein were the direct and proximate result of the negligence, carelessness, and

negligent acts and omissions of Defendants Doe, Trust and Connell in:

(a) carelessly and negligently selecting, hiring and supervising their contractors,
including Defendants Punchline and VIR;

(b) hiring Defendants Punchline and VIR when Defendants Doe, Trust and
Connell knew or should have known that Defendants Punchline and VIR did not
have proper experience to perform the work for which they were hired;

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(c) hiring Defendants Punchline and VIR when Defendants Doe, Trust and
Connell knew or should have known that Defendants Punchline and VIR had the
propensity to perform their work in a negligent and careless manner;

(d) failing to make sure the work done by Defendants Punchline and VIR was
properly monitored; and

(e) failing to discover and warn that the work performed by Defendants Punchline
and VIR was causing damage to adjacent properties.

31. As a direct and proximate result of said negligence, Insured suffered damage in

excess of $25,000.00.

WHEREFORE, Plaintiff a/s/o Insured demands judgment in its favor and against

Defendants Trust and Connell in excess of $25,000.00, together with interests, costs of suit, and

any other relief this Honorable Court deems just and proper.

COUNT IV – PLAINTIFF v. DEFENDANTS DOE, TRUST and CONNELL


[VICARIOUS LIABILITY]

32. Plaintiff incorporates the allegations of all previous paragraphs hereof as though

same were fully set forth at length herein.

33. Pursuant to the NY Building and Administrative Codes, Defendants Doe, Trust

and Connell are liable for the negligent acts and omissions of Defendants Punchline and VIR.

WHEREFORE, Plaintiff a/s/o Insured demands judgment in its favor and against

Defendants Doe, Trust and Connell in excess of $25,000.00, together with interests, costs of suit,

and any other relief this Honorable Court deems just and proper.

COUNT V – PLAINTIFF v. DEFENDANT PDE


[NEGLIGENCE]

34. Plaintiff incorporates the allegations of all previous paragraphs hereof as though

same were fully set forth at length herein.

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35. At all times relevant and material hereto, Defendant PDE owed a duty to exercise

reasonable care and skill in rendering its architectural/engineering services and to avoid creating

an unreasonable risk of property damage to the properties adjacent to the subject jobsite.

36. Upon information and belief, the occurrence and the subsequent damage as

described herein were the direct and proximate result of the negligence, carelessness, and

negligent acts and omissions of Defendant PDE in:

(a) performing its services in a manner that caused damage to Plaintiff’s Property;

(b) preparing/providing construction, excavation and/or demolition


plans, blueprints and instructions in a negligent manner;

(c) preparing/providing construction, excavation and/or demolition


plans, blueprints and instructions in a manner that caused damage to Plaintiff’s
Property;

(d) failing to exercise reasonable care and skill in providing its


Architectural/engineering services; and

(e) failing to monitor and supervise said construction, excavation and/or


Demolition work; and

(f) failing to comply with applicable statutes, codes, regulations, building codes,
and generally recognized industry practices and standards.

37. As a direct and proximate result of said negligence, Insured suffered damage in

excess of $25,000.00.

WHEREFORE, Plaintiff a/s/o Insured demands judgment in its favor and against

Defendant PDE in excess of $25,000.00, together with interests, costs of suit, and any other relief

this Honorable Court deems just and proper.

/s/ V. Kushnir
Date: 10/12/2016 By: ____________________
Vlad Kushnir, Esq.

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VB Kushnir, LLC
vk@vbklaw.com

1330 Avenue of the Americas | Suite 23A


New York, NY 10019
P: 212-653-0392 | F: 888-470-2704

Please Rely To Philadelphia Address:


1735 Market Street | Suite 3750
Philadelphia, PA 19103
P: 267-507-6078 | F: 888-470-2704

/s/ M. Vaccaro
Date: 10/12/2016 By: ____________________
Michael Vaccaro, Esq.
Kearns & Duffy, P.C.
mcvaccaro@kearnsduffylaw.com
3648 Valley Road
Liberty Corner, NJ 07938
P: 908-647-7773 | F: 908-647-2314

TO:

217 TRUST UTA JANUARY 22, 2013


217 East 62nd Street
New York, NY 10065
and
JOHN DOE, AS TRUSTEE OF
217 TRUST UTA JANUARY 22, 2013
and
CHRISTOPHER CORNELL
217 East 62nd Street
New York, NY 10065
and
VICKY CORNELL
217 East 62nd Street
New York, NY 10065
and
PUNCHLIST INCORPORATED
462 Broadway | Third Floor
New York, NY 10013
and
VIR BUILERS, INC.
35-18 37th Street | Suite 1L
Long Island City, NY 11101

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and
PETRACCA DESIGN & ENGINEERING, P.C.
199 Derby Place
Smithtown, NY 11787

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