FILED: KINGS COUNTY CLERK 12/23/ :52 PM INDEX NO /2016 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 12/23/2016

Transcription

1 FILED KINGS COUNTY CLERK 12/23/ PM INDEX NO /2016 NYSCEF DOC. NO. 13 RECEIVED NYSCEF 12/23/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS THE MERCHANT OF BROOKLYN INC. and IRA AND LARRY WEINSTEIN LLC, -against- Plaintiffs, MILL AVE DEVELOPMENT LLC, HEBREW LANGUAGE ACADEMY CHARTER SCHOOL, FRIENDS OF HEBREW LANGUAGE ACADEMY CHARTER SCHOOLS, INC., JOSEPH L. BALKAN, INC., BCB COMMUNITY BANK and MANUFACTURERS AND TRADERS TRUST COMPANY, Defendants. Index No /2016 AMENDED COMPLAINT - - X Plaintiffs Ira and Larry Weinstein, LLC and The Merchant of Brooklyn, Inc. (together, Plaintiffs and each individually a Plaintiff ), by their undersigned attorney, for its complaint against defendants MILL AVE DEVELOPMENT LLC, HEBREW LANGUAGE ACADEMY CHARTER SCHOOL, FRIENDS OF HEBREW LANGUAGE ACADEMY CHARTER SCHOOLS, INC., JOSEPH L. BALKAN, INC., BCB COMMUNITY BANK and MANUFACTURERS AND TRADERS TRUST COMPANY (collectively, " Defendants " and each individually a " Defendant "), allege as follows based upon information and belief 1 1 of 14

2 PARTIES 1. Plaintiff Ira and Larry Weinstein, LLC (hereinafter, Plaintiff LLC ) is a New York limited liability company with its principal place of business at 6103 Strickland Ave., Brooklyn, NY Plaintiff is owner of building at 2184 Mill Ave., Brooklyn NY located in Block 8470 lot a. Merchant of Brooklyn, Inc. (hereinafter, Plaintiff MOB ) is a New York corporation with ts principal place of business at 6103 Strickland Avenue aka 2184 Mill Ave.,, Brooklyn, NY (A tenant of Plaintiff LLC ) 1. Defendant Mill Ave. Development LLC (hereinafter, Defendant LLC ) is a New York limited liability company with offices at 2186 Mill Ave., Brooklyn, NY Defendent LLC is owner of 2186 Mill Ave., Brooklyn NY which is comprised of block 8470 lot Defendant BCB COMMUNITY BANK is a Bank with offices at 595 Ave. C, Bayonne, NJ, ( Hereinafter Defendant BCB BANK ). 3. Defendant MANUFACTURERS AND TRADERS TRUST COMPANY is a NY Banking Corporation with offices at c/o M&T Bank, 350 Park Ave., New York, NY (Hereinafter Defendant M&T Bank ). 4. Defendant Hebrew Language Academy Charter School is a School located at 2186 Mill Ave., Brooklyn,NY (Hereinafter "School"). \ 2 2 of 14

3 5. Defendant Friends of Hebrew Language Academy Charter Schools, Inc. is a New York Corporation located at 729 7th Ave., 9th Fl, New York, NY (Hereinafter Friends ) 6. Defendant JOSEPH L. BALKAN INC., is a New York Corporation contracting company with offices at Jamaica Ave., Richmond Hill, NY (hereinafter Balkan ). JURISDICTION AND VENUE 7. This Court has personal jurisdiction over the Defendants, and venue is proper because the Easement Agreement is a contract (a) agreed to by and/or binding upon one or more parties who are residents of Kings County, (b) which runs with the land. 8. The Easement site that is the subject of this litigation is located in Brooklyn, NY The damages sustained by Plaintiffs were sustained in Brooklyn, New York. FACTS COMMON TO ALL CAUSES OF ACTION 10. The easement was created between two contiguous parcels, (Block 8470, lots 1090 and 1091) which were both land locked. That is to say neither parcel was abutting Strickland Ave or Mill Ave. 3 3 of 14

4 10a. Each building is greater than 50,000 sq feet and both require substantial sprinkler systems. The easement agreement which is at the center of this action provides for a water main to be attached to plaintiffs sprinkler system and maintained in plaintiff's premises in order to supply water to defendants sprinkler system via a water main that runs from plaintiff LLC property to defendants property pursuant to a written easement. 10b. The aforesaid Water Main is subject to the Easement Agreement dated February 25, 1967 recorded in the County of Kings property records at reel 373 Page 484. (exhibit A ) The aforesaid Easement Agreement is between Pleg Realty Co., Inc [Party of the First Part] and Tama Realty Corp.[Party of The Second Part], predecessors of the current successors in interest. 10c. Defendants have caused damage to Plaintiffs respective Real and Personal Property by causing a water main pipe break in front of 2186 Mill Ave., Brooklyn, New York on or about November 26-27, In addition to property damage, etc., over 150,000 cubic feet of water has been billed to Plaintiff I &L which rightfully must be paid by Defendants. The aforesaid Easement Agreement provides for the 8 inch water main connecting Plaintiff LLC s sprinkler room at 6103 Strickland Ave. and the sprinkler system at 2186 Mill Ave., Brooklyn, NY which serve the School and interests of "Friends", Developer and BCB Bank defendants. (the properties at all times mentioned herein are contiguous to each other). 12. The damage was caused by Balkan who was a contractor working for Developer and/or School. Balkan dug a hole in the easement area and broke the pipe while doing work for defendants "Friends, Developer and/or School. The water was gushing 4 4 of 14

5 thereafter for several hours until the valve supplying 2186 Mill Ave from plaintiffs sprinkler room was shut. 13. In some areas, up to 2 ½ feet of water covered the first floor of Plaintiff LLC s building and Plaintiff Merchant s Retail/Storage area. The water caused damage to both plaintiffs. The water then took two days to substantially dissipate. The pertinent part of the easement agreement (exhibit A ) states D. It is further understood and agreed that the party of the second part, its successors or assigns shall at all times indemnify, protect and save harmless the party of the first part by providing adequate liability insurance against all costs and expenses and from all loss of, or damage to property of the party of the first part, and from any and all loss of life and property, or injury or damage to the person or property of any third person or persons or from any and all claims, demands, judgements, suits or action for such loss, injury or damage caused by or growing out of the presence or use or the installation, maintenance, condition, repair or removal of said water main, whether such loss, damage or injury shall be caused by or be due in whole, or in part to the negligence of the party of the second part, its successors or assigns or otherwise. 9. The Easement Agreement also states in next to last paragraph This agreement shall inure to the benefit of, and shall bind the successors and assigns of each of the parties hereto. 10. The Chain of ownership, the successors in interest of the Party of The First Part Pleg Realty Co Inc to Philip Lubin by deed 3/11/75; Philip Lubin to Ira Weinstein by deed 9/24/75; Ira Weinstein to Ira and Larry Weinstein by deed 10/28/75; Ira and Larry Weinstein to Ira and Larry Weinstein LLC., by deed dated 8/5/2002. ( see exhibit E attached hereto). 5 5 of 14

6 11. The Chain of ownership, the successors in interest of the Party of the Second Part Tama Realty Co to Polymer Research Corp of America by deed dated 5/4/90; Alan Nisselson, as Trustee of Bankrupt Polymer Research Corp of America to 2186 Mill Ave, Holdings LLC by deed dated 12/12/08; 2186 Mill Ave Holdings to Paul Grossman by deed 12/28/11; Paul Grossman to Mill Ave Development, LLC by deed 12/28/11 ( see exhibit F attached hereto). 12. On Information and belief, HEBREW LANGUAGE ACADEMY CHARTER SCHOOL, School, and/or FRIENDS OF THE HEBREW LANGUAGE ACADEMY CHARTER SCHOOL has a leasehold interest in the property of the party of the second part and has undertaken, by its agreement with Developer responsibilities for the repair and maintenance of the sprinkler system, the bills for water and sewer and both are beneficiaries of the water main which is the subject of this action. 13. Defendant BCB Bank is an assignee of Developer by Assignment Agreement dated November 22, 2013 ( exhibit G attached hereto). 14. Defendant M&T Bank is an assignee of Developer by Assignment dated December 16, 2015 (exhibit H attached hereto). RELIEF SOUGHT 15. By this action, Plaintiff therefore seeks a) money damages, against defendants Balkan, Developer, Friends, School & BCB Bank ; and b) declaratory relief and injunctive relief against School, Friends Developer and M&T Bank defendants effective heretofore, in accordance with the terms of the Easement Agreement, including, but not limited to 1. Compelling Defendants to maintain and provide plaintiffs with a certificate of 6 6 of 14

7 insurance naming plaintiffs additional insureds under the general liability policy of defendants., 2. Compelling defendants to set a water meter for defendants future share of the water, all to be borne at sole expense of defendants. and 3) Compelling defendants to share in maintenance, repair and expenses of the water main. AS AND FOR A FIRST CAUSE OF ACTION REIMBURSEMENT FOR DAMAGES IN ACCORDANCE WITH PROVISIONS OF EASEMENT AGREEMENT 16. Plaintiffs reaffirm and reallege allegations contained in paragraphs numbered 1 through 11 as if fully set forth herein. 17. Defendants Developer BCB Bank Friends and School are successors or assigns of party of the second part as described in the easement agreement. 18. As successors or assigns, pursuant to the Easement Agreement, Developer BCB Bank Friends and School are obligated to indemnify plaintiff LLC as successor to party of the first part and to indemnify Merchant as 3rd party for losses sustained as a result of the water pipe break. Plaintiff LLC sustained damages to its building as a result of the flooding, in the amount of $69, including water costs and lost rentals. ( see LLC Damages list, exhibit B attached hereto). 19. As a result of the flooding caused by the water pipe break, plaintiff Merchant sustained damages to its property in the amount of $66, (see Merchant damages list, exhibit C attached hereto) 7 7 of 14

8 20. Wherefore, pursuant to the easement agreement, plaintiff LLC demands judgment for $69, on its first cause of action and plaintiff Merchant demands judgment for $66, on its first cause of action for reimbursement for damages against defendants School, Friends BCB Bank and Developer AS AND FOR A SECOND CAUSE OF ACTION REIMBURSEMENT FOR DAMAGES CAUSED BY NEGLIGENCE 21. Plaintiffs reaffirm and reallege allegations contained in paragraphs numbered 1 through 16 as if fully set forth herein. 22. At all times mentioned in this complaint, defendants Balkan School Friends BCB Bank and Developer jointly and/or severally negligently and carelessly commenced construction, inspection and/or modification of the water main without shutting off the water source, without providing for management of the water output, without conducting due diligence; without consulting with Plaintiffs, without regard to known easements in the Title report and/or without exercising due care negligently caused damage to the plaintiffs. 23. As a direct and proximate result of the negligence and carelessness of defendants as described above, the damaged 8 inch water main discharged a massive amount of water As a result of the flooding caused by the water pipe break, plaintiff Merchant sustained damages to its property in the amount of $66, (see Merchant damages list, exhibit C attached hereto). 8 8 of 14

9 24. As a direct and proximate result of the negligence and carelessness of defendants as described above, as a result of the water pipe break, plaintiff LLC s building flooded with water, causing damages & losses. Plaintiff LLC sustained damages to its building as a result of the flooding, in the amount of $69, including water costs and lost rentals. ( see LLC Damages list, exhibit B attached hereto). 25. Wherefore, plaintiff LLC demands judgment for $69, on its second cause of action and plaintiff Merchant demands judgment for $66, On its second cause of action for reimbursement for damages against defendants Balkan Friends School BCB Bank and Developer. AS AND FOR A THIRD CAUSE OF ACTION REIMBURSEMENT FOR UNJUST ENRICHMENT 26. Plaintiffs reaffirm and reallege allegations contained in paragraphs numbered 1 through 14 as if fully set forth herein. 27. Developer, BCB Bank, M&T Bank Friends and School have used or benefited from water coming from plaintiff LLC s water supply without paying LLC for the cost of the water. 28. As a result of occurrences set forth in paragraphs 22 and 23 above, defendants Developer BCB Bank and Friends and School have been unjustly enriched. 29. By occurrences of November 26, 27, 2013 as well as usage since the aforesaid water main break incident, plaintiff LLC has paid NYC DOF for water & sewer 9 9 of 14

10 charges for water attributable to defendants Developer and Friends School in the amount of $14, (see exhibit B attached). 30. Plaintiff LLC has incurred expenses in maintaining and repairing and in keeping Motor and Booster Pump that services the water main that is subject to the Easement Agreement in exhibit A in good order and condition. 31. The costs of maintaining and repairing Motor and Booster Pump in good order and condition include, but are not limited to invoices attached hereto and made part hereof as exhibit D & K. The total of the aforesaid repairs to date are $23, plus $15,400 and $2700 for a total of $41, Wherefore, plaintiff LLC demands judgment for $55, on its third cause of action for reimbursement for unjust enrichment against defendants Developer BCB Bank, friends and School. AS AND FOR A FOURTH CAUSE OF ACTION DECLARATORY JUDGMENT 33. Plaintiffs reaffirm and reallege allegations contained in paragraphs numbered 1 through 26 as if fully set forth herein. 34. Under terms of the Easement Agreement ( exhibit A ) Defendant Developer, M&T Bank and Friends and School are required to maintain and supply of 14

11 Plaintiff LLC with adequate liability insurance and to reimburse Plaintiff LLC as successor to party of the first part for all costs, expenses etc associated with the existence of the water main 35. Wherefore Plaintiff LLC respectfully requests the Court make declaratory judgment stating that Defendant Developer, M&T Bank, Friends and School be jointly and severally responsible to Plaintiff LLC as well as its successors and/or assigns under and pursuant to the Easement Agreement (exhibit A ) to provide adequate insurance coverage and to install and maintain a water meter to measure Defendants usage of plaintiffs LLC s water in order to reimburse plaintiff LLC for the usage of water thereof. AS AND FOR A FIFTH CAUSE OF ACTION -MANDATORY INJUNCTION 36. Plaintiffs reaffirm and reallege allegations contained in paragraphs numbered 1 through 29 as if fully set forth herein. 37. Wherefore Plaintiff LLC respectfully requests the Court order a mandatory injunction ordering defendants Developer, M&T Bank Friends and School jointly and severally, in accordance with the Easement Agreement (exhibit A ) provide and deliver to plaintiff LLC a certificate of insurance naming Ira and Larry Weinstein LLC an additional named insured under their liability insurance policy in an amount of coverage the Court deems adequate and it be renewed and maintained as long as either of the buildings on the respective parcels to the easement remain standing of 14

12 38. In addition, it is respectfully requested the defendant Developer, M&T Bank Friends and School be ordered to install a water meter or submeter to determine the usage of plaintiff LLC s water for the purpose of determining the cost for the amount of water from the connection from Plaintiff LLC s sprinkler to defendant Developer Friends and Schools sprinkler system, and that the defendants Developer, M&T Bank Friends and School further be jointly and severally ordered to pay said water bills promptly when presented to them, and to pay for repairs for the said connection for as long as said water main is connected to Plaintiff LLC s Sprinkler system. WHEREFORE, Plaintiffs demand judgment against Defendants, and each of them, as follows A. Judgment for Plaintiff THE MERCHANT OF BROOKLYN INC. in the amount of $66, on its first cause of action for Reimbursement of Damages, $66, against defendants BCB Bank, Developer Friends and School. B. Judgment for plaintiff THE MERCHANT OF BROOKLYN INC. in the amount of $66, on its second cause of action for Reimbursement for negligence against defendants Balkan, BCB Bank, Developer, Friends and School. C. Judgment for plaintiff IRA AND LARRY WEINSTEIN LLC in the amount of $69, on its first cause of action for Reimbursement of Damages against defendants School BCB Bank Friends and Developer. D. Judgment for plaintiff IRA AND LARRY WEINSTEIN LLC in the amount of $69, on its second cause of action for Reimbursement for Negligence against defendants Balkan Friends School BCB Bank and Developer. E. i)judgment for plaintiff Ira & Larry Weinstein LLC. in the amount of $37,775,96 on its third cause of action for reimbursement for unjust enrichment against defendants Developer BCB Bank Friends, and School ii) Judgment for plaintiff Ira & Larry of 14

13 Weinstein LLC. in the amount of $18, on its third cause of action for reimbursement for unjust enrichment against defendants Developer BCB Bank, Friends and School for repairs and water costs arising subsequent to the incident of November 27, 2013 F. Judgment in favor of plaintiff Ira & Larry Weinstein LLC on its fourth cause of action for declaratory judgment stating that Defendant Developer, M&T Bank Friends and School be jointly and severally responsible to Plaintiff LLC as well as its successors and/or assigns under and pursuant to the Easement Agreement (exhibit A ) to provide adequate insurance coverage and to install and maintain a water meter to measure Defendants usage of plaintiffs LLC s water in order to reimburse plaintiff LLC for the usage of water thereof. G. Judgment in favor of plaintiff Ira and Larry Weinstein LLC for a mandatory injunction ordering defendants Developer, M&T Bank Friends and School, in accordance with the Easement Agreement (exhibit A ) to jointly and severally provide and deliver to plaintiff LLC a certificate of insurance naming Ira and Larry Weinstein LLC insured under their liability insurance policy in such amount as the Court may deem adequate and it be renewed and maintained as long as either of the buildings on the respective parcels to the easement remain standing, and, further, Defendants be jointly and severally ordered to pay said water bills promptly when presented to them, and to pay for repairs for the said connection for as long as said water main is connected to Plaintiff LLC s Sprinkler system. Along with costs, and such other or further relief as to the Court may seem just, reasonable and proper under the circumstances. Dated December 23, 2016 Brooklyn, New York s/ Ira N Weinstein Ira N. Weinstein WEINSTEIN LAW FIRM Attorney for Plaintiffs 6103 Strickland Ave. Brooklyn, NY Tel Fax of 14

14 of 14