FILED: NEW YORK COUNTY CLERK 06/08/ :55 PM INDEX NO /2013 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 06/08/2015

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1 FILED: NEW YORK COUNTY CLERK 06/08/ :55 PM INDEX NO /2013 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 06/08/2015 x:\cases\gb58439\legal\resp03-waldorfbpdem GAR:rac SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X LUIS RAMIREZ, Plaintiff, Index No.: /13 -against- RESPONSE TO THIRD-PARTY DEFENDANT W5 GROUP LLC A.W. & S. CONSTRUCTION CO., INC., EMPIRE d/b/a WALDORF STATE BUILDING COMPANY L.L.C. and EMPIRE DEMOLITION s/h/a W5 STATE BUILDING ASSOCIATES L.L.C., GROUP, LLC d/b/a WALDORF DEMOLITION S DEMAND FOR Defendants. A VERIFIED BILL OF X PARTICULARS DATED A.W. & S. CONSTRUCTION CO., INC., SEPTEMBER 26, 2013 Third-Party Plaintiff, Index No.: -against- W5 GROUP, LLC d/b/a WALDORF DEMOLITION, Third-Party Defendant X C O U N S E L O R S : PLEASE TAKE NOTICE, that defendant/third-party plaintiff, A.W. & S. CONSTRUCTION CO., INC., by and through its attorneys, BARRY, McTIERNAN & MOORE, LLC, as and for its Response to Third-Party Defendant W5 GROUP LLC d/b/a WALDORF DEMOLITION s/h/a W5 GROUP, LLC d/b/a WALDORF DEMOLITION s Demand for a Verified Bill of Particulars dated September 26, 2013, states as follows: 1. See plaintiff s attached bills of particulars dated August 14, 2013 and August 30, 2013.

2 2. Third-party defendant, W5 GROUP LLC d/b/a WALDORF DEMOLITION s/h/a W5 GROUP, LLC d/b/a WALDORF DEMOLITION, breached a subcontract and purchase order and is liable pursuant thereto. 3. The subcontract and purchase order are written. 4. None. 5. Please see defendant/third-party plaintiff, A.W. & S. CONSTRUCTION CO., INC. s, Response to Third-Party Defendant, W5 GROUP LLC d/b/a WALDORF DEMOLITION s/h/a W5 GROUP, LLC d/b/a WALDORF DEMOLITION s Notice for Discovery and Inspection dated October 21, A dangerous or defective condition is alleged by plaintiff in his original complaint. 7. An agent, servant or employee of third-party defendant, W5 GROUP LLC d/b/a WALDORF DEMOLITION s/h/a W5 GROUP, LLC d/b/a WALDORF DEMOLITION, had actual and/or constructive notice thereof. 8. An agent, servant or employee of third-party defendant, W5 GROUP LLC d/b/a WALDORF DEMOLITION s/h/a W5 GROUP, LLC d/b/a WALDORF DEMOLITION, received actual notice of the dangerous of defective condition in the days, hours and moments leading up to the incident. The name of the agent, servant or employee of third-party defendant, W5 GROUP LLC d/b/a WALDORF DEMOLITION s/h/a W5 GROUP, LLC d/b/a WALDORF DEMOLITION, that received actual notice of the dangerous or defective condition is unknown at this time. As discovery continues in this matter,

3 defendant/third-party plaintiff, A.W. & S. CONSTRUCTION CO., INC., reserves its right to supplement this response pursuant to the CPLR. 9. An agent, servant or employee of third-party defendant, W5 GROUP LLC d/b/a WALDORF DEMOLITION s/h/a W5 GROUP, LLC d/b/a WALDORF DEMOLITION, caused or created the condition on, or before, May 13, At this time, the name of the agent, servant or employee of third-party defendant, W5 GROUP LLC d/b/a WALDORF DEMOLITION s/h/a W5 GROUP, LLC d/b/a WALDORF DEMOLITION, is unknown. However, defendant/third-party plaintiff, A.W. & S. CONSTRUCTION CO, INC., reserves its right to supplement this response pursuant to the CPLR. 10. The condition existed for at least the amount of time that third-party defendant, W5 GROUP LLC d/b/a WALDORF DEMOLITION s/h/a W5 GROUP, LLC d/b/a WALDORF DEMOLITION, was demolishing the wall that produced the sheetrock or debris that allegedly struck plaintiff, LUIS RAMIREZ. Defendant/Third-Party Plaintiff, A.W. & S. CONSTRUCTION CO, INC., reserves its right to supplement this response pursuant to the CPLR. 11. This demand is premature as depositions have not yet taken place. Based upon the allegations set forth in the pleadings and plaintiff s verified bill of particulars, it can be anticipated that it will be claimed at trial that third-party defendant, W5 GROUP LLC d/b/a WALDORF DEMOLITION s/h/a W5 GROUP, LLC d/b/a WALDORF DEMOLITION, was negligent or culpably responsible for plaintiff s accident by failing to mitigate damages; in failing to observe that which should have been observed at the time and place of the occurrence; in failing to have avoided the accident at issue

4 through the exercise of reasonable care; in negligently, carelessly, and recklessly causing the accident; in permitting its workers to perform work in an area where other work was being performed; in failing to provide its workers with proper instructions with respect to safety and work activities which could have avoided the accident at issue; in failing to provide a proper safety plan; in failing to provide a safe place to work for all workers on the jobsite; in failing to provide appropriate supervisory personnel to enforce safety regulations to have avoided the accident at issue; in failing to warn the plaintiff; in failing to warn any other responsible party as to the potential of an accident at issue; in failing to enforce its own safety rules and regulations or reasonable safety rules and regulations which could have avoided the accident at issue; in failing to warn the plaintiff as to the appropriate personal protection equipment to the extent that the allegations which will be raised by plaintiff assert the absence of any such protective equipment; in failing to properly train and educate its supervisory personnel; in failing to properly warn plaintiff or any other party as to work-related safety conditions which would have avoided the accident at issue; in failing to meet all industry standards with respect to safety under which the accident at issue could have been avoided or mitigated; in failing to circumvent or avoid the condition(s) allegedly in existence at the time of the accident; in failing to act as a reasonable and prudent contractor would have acted at the time of the accident under the circumstances presented through which the accident could have been avoided or mitigated; in failing to take proper precautions and make appropriate observations in order to have avoided the accident; in failing to create an alternate means to have avoided any alleged condition which

5 gave rise to the accident or to have selected a different means or method for its employees to have performed their work activities at the time of the accident; in failing to promulgate and/or enforce a proper safety program; in failing to promulgate and/or enforce appropriate safety instructions and warnings; in improperly training, hiring, and supervising its employees and/or supervisors; in failing to perform proper tests and inspections associated with those theories of liability which plaintiff will eventually attempt to prove in this litigation; in failing to inspect both sides of the wall prior to allowing its workers demolish the wall; in failing to inspect any area around the wall where debris from demolition of the wall may have emanated during the work; in failing to inspect and properly supervise the demolition of the wall as the demolition took place; in allowing work to be performed in such a way as to create instability and/or debris in an unreasonable manner under the circumstances; in failing to make timely inspections and effectuate proper supervision of the demolition as it progressed; in failing to install, maintain and furnish proper bracing and/or support for the wall; in failing to provide proper bracing and/or support for the wall that was being demolished; in failing to provide proper safety devices and/or precautions with respect to the wall being demolished; in failing to provide proper safety devices and/or precautions to the workers performing the demolition or other workers/trades in the area; in being negligent or failing to exercise reasonable care in the maintenance, management, operation, construction, supervision, and control of the premises in or about the area where the accident at issue occurred; in failing to properly coordinate the work which gave rise to plaintiff s injuries; in failing to locate its workers or confine its workers to a

6 safe work place; in failing to provide a safe place to work in that work was permitted in an unsafe area and/or way; in failing to assign work to safe areas at the project at issue; in failing to fulfill its contractual obligations as set forth in the written agreement and purchase order with defendant/third-party plaintiff, A.W. & S. CONSTRUCTION CO., INC.; in failing to provide for proper and reasonable protection which would have avoided the accident at issue; in failing to perform proper inspections; and in otherwise being negligent, careless, and reckless in having caused plaintiff s accident or having failed to avoid the accident. 12. This defendant/third-party plaintiff, A.W. & S. CONSTRUCTION CO., INC., incorporates by reference all of those allegations with respect to liability which plaintiff has plead in his Verified Bills of Particulars dated August 14, 2013 and August 30, 2013, and, to the extent plaintiff is able to prove any of those allegations, it will be defendant/third-party plaintiff, A.W. & S. CONSTRUCTION CO., INC. s, contention at trial that third-party defendant, W5 GROUP LLC d/b/a WALDORF DEMOLITION s/h/a W5 GROUP, LLC d/b/a WALDORF DEMOLITION, was responsible for each and every allegation set forth therein. 13. See response to paragraph 4. In addition, third-party defendant, W5 GROUP LLC d/b/a WALDORF DEMOLITION s/h/a W5 GROUP, LLC d/b/a WALDORF DEMOLITION, breached its Subcontractor Agreement and corresponding Purchase Order with defendant/third-party plaintiff, A.W. & S. CONSTRUCTION CO., INC., because plaintiff, LUIS RAMIREZ, alleged injuries arose from, were in connection with

7 and were incidental to the removal and discard of all existing non structural walls as required under the Subcontractor Agreement and corresponding Purchase Order. 14. See responses to paragraphs 4 and See responses to paragraphs 4 and Third-party defendant, W5 GROUP LLC d/b/a WALDORF DEMOLITION s/h/a W5 GROUP, LLC d/b/a WALDORF DEMOLITION, failed to procure insurance under the Subcontractor Agreement, which stated: 3. Prior to providing any labor, services, or materials, or performing any Work, Subcontractor shall, at its sole cost and expense, 1) obtain the following insurance coverage with one or more insurers licensed to do business in the State of New York, naming as additional insureds on a primary and non-contributory basis the Contractor, project Owner, the fee owner of the property and/or building where the project is located, leaseholder, and any other person or entity whom Contractor is required to defend, indemnify and hold harmless and/or for whom Contractor is performing Work 2) provide to Contractor an insurance certificate and a copy of the policy or other satisfactory evidence of such coverage from the insurer(s) and 3) require that all its own subcontractors and suppliers and lower tier contractors and suppliers obtain and provide the same coverage Additionally, all insurance coverage obtained by Subcontractor in compliance with this Agreement shall be, and shall be endorsed to reflect that, such insurance shall be primary to the limits of any other policy of insurance and that such insurance shall be liable up to the limits of the policy without contribution from or apportionment with insurance of any additional insured, whose coverage shall be excess only and secondary to Subcontractor s coverage. (b) Commercial General Liability with limits of not less than $3,000,000 any one occurrence, $3,000,000 general aggregate (on a per project basis) for bodily injury, personal injury The required period of coverage was to run for the length of time that the Subcontractor Agreement was in effect, for the period commencing September 30, 2012 and ending September 30, Additionally, see paragraph eight (8)(a) as well as the attached Subcontractor Agreement and Purchase Order. 17. See responses to paragraphs 4, 5, and paragraphs 8(a) and (b). In addition, defendant/third-party plaintiff, A.W. & S. CONSTRUCTION CO., INC., entered into a written Subcontractor Agreement, with third-party defendant, W5 GROUP LLC

8 d/b/a WALDORF DEMOLITION s/h/a W5 GROUP, LLC d/b/a WALDORF DEMOLITION, that was executed by both parties on September 7, 2012 and October 16, 2012, respectively. Furthermore, third-party defendant, W5 GROUP LLC d/b/a WALDORF DEMOLITION s/h/a W5 GROUP, LLC d/b/a WALDORF DEMOLITION, executed and accepted a Purchase Order from defendant/third-party plaintiff, A.W. & S CONSTRUCTION CO., INC., with date of order May 10, 2013 and date required May 18, See defendant/third-party plaintiff, A.W. & S. CONSTRUCTION CO., INC. s, Response to Plaintiff s Notice for Discovery and Inspection dated August 2, protected. 19. See response to paragraph Objection. This information is privileged, irrelevant, and privately Dated: New York, New York October 21, 2013 Yours, etc., Gary A. Rome GARY A. ROME, ESQ. BARRY, McTIERNAN & MOORE, LLC Attorneys for Defendant/Third-Party Plaintiff A.W.& S. CONSTRUCTION CO., INC. 2 Rector Street, 14 th Floor New York, New York (212) File No.: GB-58439

9 TO: SANDER N. ROTHCHILD, ESQ. FABIANI COHEN & HALL, LLP Attorneys for Third-Party Defendant W5 GROUP LLC d/b/a WALDORF DEMOLITION s/h/a W5 GROUP, LLC d/b/a WALDORF DEMOLITION 570 Lexington Avenue, 4 th Floor New York, New York (212) File No.: JORGE ROMAN, ESQ. ROBERT A. CARDALI & ASSOCIATES, LLP Attorneys for Plaintiff 39 Broadway, 35 th Floor New York, New York (212) HEIDI M. WEISS, ESQ. THE LAW OFFICES OF EDWARD GARFINKEL Attorneys for Defendants EMPIRE STATE BUILDING COMPANY L.L.C. and EMPIRE STATE BUILDING ASSOCIATES L.L.C. 12 Metrotech Center, 28 th Floor Brooklyn, New York (718) File No.: NYNY 30670

10 STATE OF NEW YORK ) ss:) COUNTY OF NEW YORK ) Cathleen A. Pergolizzi, being duly sworn, deposes and says: That I am not a party to the within action, am over 18 years of age and reside in Staten Island, New York. That on the 15 th day of November, 2013 deponent served a true copy of the annexed RESPONSE TO THIRD-PARTY DEFENDANT W5 GROUP LLC d/b/a WALDORF DEMOLITION s/h/a W5 GROUP, LLC d/b/a WALDORF DEMOLITION S DEMAND FOR A VERIFIED BILL OF PARTICULARS DATED SEPTEMBER 26, 2013 upon the parties listed below by mailing the same in a sealed envelope, with postage prepaid thereon, in a post-office or official depository of the United States Postal Service within the State of New York, addressed to the last known addresses of the addressees as indicated below: TO: SANDER N. ROTHCHILD, ESQ. FABIANI COHEN & HALL, LLP Attorneys for Third-Party Defendant W5 GROUP LLC d/b/a WALDORF DEMOLITION s/h/a W5 GROUP, LLC d/b/a WALDORF DEMOLITION 570 Lexington Avenue, 4 th Floor New York, New York HEIDI M. WEISS, ESQ. THE LAW OFFICES OF EDWARD GARFINKEL Attorneys for Defendants EMPIRE STATE BUILDING COMPANY L.L.C. and EMPIRE STATE BUILDING ASSOCIATES L.L.C. 12 Metrotech Center, 28 th Floor Brooklyn, New York

11 JORGE ROMAN, ESQ. ROBERT A. CARDALI & ASSOCIATES, LLP Attorneys for Plaintiff 39 Broadway, 35 th Floor New York, New York Sworn to before me this 15 th day of November, 2013 Cathleen A. Pergolizzi NOTARY PUBLIC