FILED: NEW YORK COUNTY CLERK 06/29/ :00 PM INDEX NO /2017 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 06/29/2017

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1 Pleadings/Desai v. Ford (SNY) Complaint docx SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK LAXMAN S. DESAI AND ANN E. DESAI, : Index no. Plaintiffs, : v. : VERIFIED COMPLAINT DAVID H. FORD, SHAWMUT WOODWORKING : & SUPPLY, INC. d/b/a SHAWMUT DESIGN & CONSTRUCTION, and VERSATILE : MECHANICAL SERVICES CORPORATION, : Defendants Plaintiffs, LAXMAN S. DESAI and ANN E. DESAI (collectively the Desais or Plaintiffs ) by their attorneys, Robert G. Cohen, Esq., and Guazzo & Guazzo, as and for their Complaint, against the defendants, DAVID H. FORD, SHAWMUT WOODWORKING & SUPPLY, INC. d/b/a SHAWMUT DESIGN & CONSTRUCTION, and VERSATILE MECHANICAL SERVICES CORPORATION, allege upon information and belief as follows: AS AND FOR A FIRST CAUSE OF ACTION FOR BREACH OF CONTRACT AGAINST ALL DEFENDANTS 1. At all times relevant herein, plaintiffs were and are individuals residing in the Commonwealth of Massachusetts, County of Norfolk. Plaintiffs reside at 268 Kent Street, Brookline, Massachusetts At all times relevant herein, plaintiffs were and are the owners of condominium Unit 4A at Greene Street, New York, NY At all times relevant herein, defendant DAVID H. FORD ( Ford ) was and is resident of the City, County and State of New York. 1 1 of 11

2 4. Ford was and is the owner and resident of a certain condominium unit located at Unit 6A, Greene Street, New York, NY The condominium is known as 109 Greene Street Condominium (the Condominium ), and by street number Greene Street, New York, NY Defendant SHAWMUT WOODWORKING & SUPPLY INC. d/b/a SHAWMUT DESIGN & CONSTRUCTION ( Shawmut ) is a foreign corporation authorized to do business in the State of New York, with offices located at 3 East 54 th Street, 10 th Floor, New York, NY 10022, performing services as a construction manager and general contractor. 7. Defendant VERSATILE MECHANICAL SERVICES CORPORATION ( Versatile ) is a domestic corporation with its principal place of business at 181 Westchester Ave., Suite 302, Port Chester, NY 10573, performing services as a heating, ventilation and airconditioning contractor. 8. The terms and conditions of ownership of the Condominium are set forth in the By-Laws, Rules and Regulations of the Condominium, A true copy of said By-Laws, Rules and Regulations is hereto annexed and marked Exhibit A. 9. On or about September 2015, defendant Ford planned a gut renovation of his condominium Unit 6A (the Renovation Project ), and as required by the By-Laws, Rules and Regulations of the Condominium, submitted his plans for the Renovation Project to the Board of Managers of the Condominium for its review, comment and approval. 10. The Board of Managers of the Condominium approved Ford s plans for the Renovation Project conditioned upon Ford entering into a so-called Alteration Agreement which 2 2 of 11

3 included, among other things, approved architectural plans for the project construction, contracts, permits for the project from the governmental department(s) responsible to issue building permits, insurance requirements, and Ford s acceptance of any liability for any damage to the building, its common areas, and/or other condominium units in the building negligently caused by or merely resulting from the renovation work ( Work ) without regard to fault. A true copy of said Alteration Agreement is hereby annexed and made part hereof as Exhibit B. 11. In or around late 2015, Ford entered into certain contracts for the Renovation Project and Work. 12. Ford retained Shawmut to act as general contractor for the Renovation Project and Work, including, among other work, the alteration of the Ford Unit s existing plumbing and heating systems. 13. Ford and/or Shawmut retained defendant Versatile to act as a sub-contractor for the Renovation Project. 14. The Renovation Project having been authorized and approved by Board of Managers of the Condominium, Ford commenced work on the Renovation Project in or about late December 2015 or early January The Renovation Project included certain demolition of and removal of the radiator heating system in Unit 6A. Removal of radiators and duty to provide temporary heat was part of the scope of work for the Renovation Project to be performed by Shawmut and its subcontractor, Versatile. 16. On or before January 6, 2016, Shawmut and/or Versatile turned off or disconnected all heat to Unit 6A. 3 3 of 11

4 17. On or about January 6, 2016, in the course of work on the Renovation Project being performed by Ford, Shawmut and Versatile to Unit 6A, water pipes froze and burst in Unit 6A, flooding plaintiffs condominium unit 4A. 18. Pursuant to the approved Renovation Project documents, Shawmut had a duty to supervise the work of its subcontractor Versatile, and as set forth in the Renovation Project contract documents, was solely responsible for any damage or injury caused by or resulting from the work, all as specified in the contract between Ford and Shawmut, and as set forth in the plans and specifications for the Renovation Project. 19. Both Shawmut and Versatile were required to execute their work in compliance with applicable construction laws, rules and regulations; and in strict conformity to the Renovation Project s contract documents, which they both failed to do, thereby breaching the project s contract documents. 20. Ford entered into an Alteration Agreement with the Condominium on behalf of himself, the Condominium, and all other unit owners in the building, including the Desais, as a condition of the approval for the Renovation Project. 21. The Alteration Agreement states, in pertinent part, as follows: 5. Work Done At Owner s Risk. Any damage to the Apartment or other areas of the Building, including, but not limited to the common structure, infrastructure, equipment, elevators, doors, roof and finishes of the Building, caused by or resulting from the Work, shall be covered by the insurance coverage required of Owner, or Owner s Contractor(s) or subcontractor(s), as the case may be. However the existence of such insurance shall not relieve Owner of liability therefor. If the Board advises Owner of any damage, which in the Board s opinion, was caused by the Work, Owner shall 4 4 of 11

5 promptly submit such claim to their insurance carrier and to their contractor(s) or subcontractor(s) for submission to their insurance carrier, as appropriate. Owner agrees to use all reasonable efforts, and to cause the contractor(s) and subcontractor(s) likewise to use all reasonable efforts, to cause any insurance carrier insuring Owner or Owner s contractor(s) or subcontractor(s) to expeditiously review and settle damage claims for which they are responsible. 6. Indemnification by Owner. Owner hereby indemnifies and holds harmless the Board, the Board s architect or engineer, and other Owners and residents of the Building against any damages suffered to persons or property as a result of the Work, whether or not caused by negligence, and for any and all liabilities arising therefrom or incurred or incurred in connection therewith. Owner shall reimburse the Board, the Board s architect or engineer, and other owners and residents of the Building for any losses, costs, fines, fees and expenses (including, without limitation, reasonable attorneys fees and disbursements) incurred as a result of the Work. 10. Owner s Responsibility For Consequences of Work. a) Owner assumes all risks of damage to the Building, its mechanical or electrical systems, and to persons and property in the Building which may result from or be attributable to the Work being performed hereunder. Owner assumes all responsibility for the maintenance and repair of any alterations and installations in the Apartment after completion. This responsibility covers all aspects of the Work, whether or not structural, including without limitation, whether tightness of windows, exterior walls or roofs, waterproofing of every part of the Building directly or indirectly affected by the Work, and maintenance of all heating, plumbing, air-conditioning, ventilation and other 5 5 of 11

6 equipment installed or altered pursuant hereto. If the operation of the Building, or any of its equipment, is adversely affected by the Work, Owner shall, when so advised, promptly remove the cause of the problem. b) If the Alteration(s) involve the modification of the existing electrical, plumbing, ventilation, waste removal or heating systems in any way, Owner shall assume responsibility (i) for the adequacy of the equipment substituted for the present equipment, in order to heat the Unit properly and in accordance with the policy of the Board and (ii) for any damage or adverse effect to the supply of heat, electricity, water, air circulation or waste removal to other portions of the Building. c) All risks of damage to the Building, any apartment in the Building, any systems and components of the Building, or to persons or property in or around the Building which may, directly or indirectly, result from or be attributable to the Alteration, and all responsibility for the maintenance, repair or replacement of the Alteration after completion are and will he assumed by Owner, and Owner agrees that this responsibility shall, without limiting the foregoing, cover all work, whether structural or non-structural, the weather-tightness of windows, exterior walls and roofs, waterproofing of every part of the Building directly or indirectly affected by the Alteration, and the maintenance and performance of all heating, plumbing, air-conditioning and other equipment previously installed or installed or altered pursuant to this agreement. If the operation of the Building or any of its equipment is adversely affected by the Alteration, Owner shall, when so advised, promptly correct the problem at Owner's sole cost and expense, in the manner required by the Board or at the Board's option, reimburse the Board for any expense incurred by it in correcting such problem. 6 6 of 11

7 22. Defendant Ford has breached the Alteration Agreement, as to which plaintiffs are both direct and intended beneficiaries, by failing to accept liability and pay for Desai s damages caused by and/or resulting from his Renovation Project; by failing to indemnify and to hold Desai harmless against the negligence of Ford and/or his contractors, Shawmut and Versatile, during the Renovation Project work, and for losses and damage arising therefrom or incurred in connection therewith, including all losses, costs, fees, attorneys fees and disbursements which the Desais have incurred as a result of Ford s work, i.e. property damage, loss of rental income, and diminution of value of Unit 4A. 23. Plaintiffs are entitled to be indemnified and held harmless by defendant Ford pursuant to the Alteration Agreement aforesaid and under all of the circumstances set forth in this Complaint, for their loss and damage including property damages, loss of rental income, diminution in the value of their property, attorneys fees, property valuation experts, public adjuster costs, interest and other costs. 24. Plaintiffs are the intended and direct beneficiaries of the insurance contracts entered into by Shawmut and Versatile as a condition of the approval of the Condominium for the performance of all work relating to the Renovation Project. 25. Shawmut and Versatile have failed and refused to enforce the terms and conditions of their insurance contracts so as to provide plaintiffs with both coverage for and payment of all losses and damages incurred by the plaintiffs arising from the Work on the Renovation Project. 26. As a result of the foregoing, plaintiffs have been damaged. 27. As a result of and/or caused by the above mentioned conduct of the defendants, the Desais unit was rendered unfit and uninhabitable for occupation by the long-term tenant 7 7 of 11

8 who had resided therein since year Said tenant had to move out, causing and/or resulting in the Desais loss of substantial rental income, diminution in value of Unit 4A, as well as substantial damage to the Desai unit, both to its structure, its fixtures, and destroyed personal property, in said unit. 28. Defendants breaches of contract have caused and continue to cause plaintiffs to incur significant expenses in the repair and remediation of their Unit 4A; to incur lost income as a result of the conduct claimed of, to incur other costs including attorneys fees; and to suffer a diminution in value of Unit 4A as a result of or caused by said conduct, all in an amount not presently calculable but expected to exceed One Million Dollars ($1,000,000.00), the full amount of which will be established at trial. AS AND FOR A SECONED CAUSE OF ACTION AGAINST ALL DEFENDANTS FOR NEGLIGENCE 29. Plaintiffs repeat, reiterate and re-allege the allegations contained in 1-28 of this Complaint and incorporate them herein by reference as if separately set forth. 30. The damage to the plaintiffs unit occurred as a result of the negligence of the defendants, without any negligence on the part of the plaintiffs contributing thereto. 31. Both Shawmut and Versatile had a duty to Ford, to the condominium s Board of Managers, to other unit owners in the Codominium generally, and specifically to plaintiffs, to execute their work properly, safely, and in a non-negligent manner, which they failed to do. 32. Both Shawmut and Versatile negligently executed their work by reason of Shawmut s failure to supervise Versatile s work, and by Shawmut and Versatile s failure to supply heat to Unit No. 6A during winter conditions construction, as required by the scope of work as defined in the Renovation Project s contract documents. 8 8 of 11

9 33. Ford is responsible for the acts of his contractors. 34. As a result of the foregoing, plaintiffs have been damaged. AS AND FOR A THIRD CAUSE OF ACTION AGAINST ALL DEFENDANTS FOR STRICT LIABILITY 35. Plaintiffs repeat, reiterate and re-allege the allegations contained in 1-34 of this Complaint and incorporate them herein by reference as if separately set forth. 36. Defendants are strictly liable to plaintiffs for all losses and damages incurred by the plaintiffs arising from the Renovation Project. 37. Defendants have failed and refused to pay plaintiffs for all losses and damages incurred by plaintiffs arising from the Renovation Project. 38. As a result of the foregoing, plaintiffs have been damaged. WHEREFORE, plaintiffs request that the Court enter judgment as follows on each cause of action: (a) Awarding money damages to plaintiffs against all defendants, jointly and severally, in a sum all in an amount not presently calculable but expected to exceed One Million Dollars ($1,000,000.00), the full amount of which will be established at trial., including damages for repair, remediation, and restoration costs; for lost rental income; for diminution in the value of Unit 4A; and for reasonable attorneys fees, interest and costs; and all other costs incurred in connection with the aforesaid flood incident for which all defendants are responsible and liable; and 9 9 of 11

10 (b) For such other and further relief as is just and proper under the circumstances. Dated: New York, New York June 27, 2017 ROBERT G. COHEN s/robert G. Cohen 188 Oaks Road Framingham, MA (508) GUAZZO & GUAZZO s/delia M. Guazzo 488 Madison Ave., Ste New York, NY / of 11

11 VERIFICATION Delia M. Guazzo, an attorney duly admitted to practice in the courts of the State of New York, affirms the following under penalties of perjury: I am the attorney for plaintiffs in the above-entitled action, I have read the attached Complaint, and the same is true and correct except as to those matters stated to be upon information and belief, and as to those matters, I believe them to be true. My belief as to those matters not stated upon knowledge is based upon the following: the contents of my file, examination of other papers and records, discussions with co-counsel, and investigation of the facts alleged. The reason I make this affirmation instead of plaintiffs is that plaintiffs do not reside in the county in which I maintain my offices. Affirmed: June 29, 2017 s/delia M. Guazzo of 11