clk/hp 90 merrick, llc v. ace american insurance company, et al summons/complaints

8/3/2019 CLK/HP 90 MERRICK, LLC v. ACE AMERICAN INSURANCE COMPANY, et al Summons/Complaints

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11/23/2011

J.

SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF NEW YORK XCLK/HP 90 MERRICK, LLC, Index No.:Plaintiff, SUMMONS ^S Q

-against-ACE AMERICAN INSURANCE COMPANY AND ABMJANITORIAL SERVICES - NORTHEAST, INC.,

%Defendants. -. B$ j ^YOUR ARE HEREBY SUMMONED, to answer the CompWrto^m^Cieintiff

CLK/HP 90 Merrick, LLC and to serve copies of your answer upon the undersignedattorneys for the Plaintiff, Cartafalsa, Slattery, Turpin & Lenoff, One Liberty Plaza, 165Broadway, 28 th Floor, New York, NY 10006, within 20 days after service of thisSummons and Complaint, exclusive of the day of service within 30 days after thecompletion.of service where service is made in any manner other than by personaldelivery within the state. In the case of your failure to answer the Complaint of thePlaintiff, a judgment will be taken against you by default for the relief demanded inPlaintiffs Complaint.

PLEASE TAKE NOTICE that this is an action for declaratory relief.DATED: New York, New YorkNovember 14, 2011

YOURS, etc.,CARTAFALSA, SLATTERY, TURPIN & LENOFF

By: BRIAN J. DALTONAttorneys for P laintiff

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CLK/HP 90 MERRICK, LLC,One Liberty Plaza165 Broadway, 28 th FloorNew York, New York 10006(212) 225-7700

TO: ACE American Insurance Company436 Walnut StreetPhiladelphia, PA 19106Attorney for Service CT Corporation System350 North St. Paul StreetDallas, TX 75201ABM Janitorial Services-Northeast, Inc.551- Fifth AvenueNew York, New York 10178

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SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF NEW YORK XCLK/HP 90 MERRICK, LLC, Index No.:

-against-Plaintiff, Basis of Venue: Defedant'sResidence

DECLARATORYACE AMERICAN INSURANCE COMPANY AND ABM JUDGMENT COMPLAINTJANITORIAL SERVICES - NORTHEAST, INC.,Defendants. X

Plaintiff CLK/HP 90 Merrick, LLC (hereinafter CLK) by its attorneys, Cartafalsa,Slattery, Turpin & Lenoff as and for its Complaint alleges upon information and belief, asfollows:

1. This action is commenced to determine the rights and obligations betweenPlaintiff and Defendants with regard to a specific contract of insurance and withreference to Plaintiffs liabilities or potential liabilities stemming from an accident of thePlaintiff in an underlying personal injury action, Jane Burgdoerfer which allegedlyoccurred on June 23, 2009.THE PARTIES

2. At all times hereinafter mentioned Plaintiff CLK was and still is a domesticcorporation duly organized and existing under and by virtue of the laws of the State ofNew York.

3. At all times hereinafter mentioned Defendant, ACE American InsuranceCompany (hereinafter ACE), was and still is an insurance company organized andexisting under and by virtue of the laws of the State of Pennsylvania.

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4. At all times hereinafter mentioned that Defendant ACE, was and still is aninsurance company organized and existed under and by virtue of the laws of the Stateof Texas.

5. At all times hereinafter mentioned that Defendant, AC E was and still is aforeign insurance company transacting business in the State of New York.

6. At all times hereinafter mentioned t Defendant AC E issued a comm ercialgeneral liability policy to the Co-defenda nt, AB M Jan itorial Services - Northeast, Inc.(hereinafter ABM).

7. At all times hereinafter mentioned that Defendant, AB M was and still is adomestic corporation doing business in the State of New York.

8. At all times hereinafter mentioned that Defendant, AB M wa s and still is aforeign corporation doing bus iness in the State of New York.

9. At all times hereinafter men tioned Defendant, AC E issued a comm ercialgeneral liability policy providing coverage to ABM . Said policy of insurance was in fullforce and effect on the date of Jane Burgdoerfer's accident which allegedly occurred onJune 23, 2009.

ALLEGATIONS APPLICABLE TO ALL CAUSES OF ACTION10. This declaratory judgment action arises out of an incident alleged to have

occurred on June 23, 2009 at premises located 90 Merrick Avenue, East Meadow, NewYork.

11 . Jane Burgdoerfer has commenced an action for damages for personalinjuries in the Supreme C ourt, New York County. In her action for damages for

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personal injuries Plaintiff alleges she was injured on June 23, 2009 at the premisesknown as 90 Merrick Avenue, East Meadow, New York. A copy of Jane Burgdoerfer'sComplaint is attached as Exhibit "A".

12. The Plaintiff herein, CLK, served an answer in the personal injury actioncommenced by Ms. Burgdoerfer. Attached as Exhibit "B" is a copy of CLK's answer inthe underlying personal injury action.

13. Attached as Exhibit "C" is a copy of Defendant ABM'S answer in theunderlying personal injury action.

14. Prior to Jane Burgdoerfer's accident, the Defendant, ABM and the Plaintiff,in this litigation, CLK, entered into a contract. Attached as Exhibit "D" is a copy of thecontract between CLK and ABM

15. Pursuant to the agreement between CLK and ABM, ABM was to performand furnish all of the work, labor, services, materials, and all things necessary for thecompletion of its work as said forth in the contract documents.

16. Pursuant to the contract, ABM, agreed to the fullest extent permitted bylaw, to indemnify, defend and hold harmless CLK from and against any and allaccidents, claims, su its, damages and/or liability alleged to arise out of or in connectionwith or as a consequence of the performance or non-performance of its work.

17. The underlying contract between CLK and ABM requires that ABMprocure, maintain and furnish a policy of insurance with a limit of liability for bodilyinjury/personal injury or property damage of at least $1,000,000.00 per occurrence and$2,000,000.00 in the aggregate.

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18. Pursuant to the agreement between CLK and ABM, ABM was to obtain acommercial umbrella excess policy with coverage limits of a minimum of $5,000,000.00of combined single limit and aggregate limit.

19. Pursuant to said agreement ABM was required to name CLK as additionalinsureds under the comm ercial general liability policy as well as on the excess policy.

20. Pursuant to the contract between CLK and ABM , CLK was to be namedas an insured under the primary commercial general liability policy issued by ACE toABM and on the excess insurance policy which upon information and belief was issuedby ACE Property & Casualty Insurance Company. The excess policy number wasPolicy No. XOOG24903382.

21. Upon information and belief, CLK was an additional insured and/or namedinsured under the policy of insurance issued by ACE to ABM for the time of Plaintiffsaccident.

22 . CLK, and/or its legal representatives, had previously tendered the defenseand indemnity of CLK to ABM and its insurance company Ace American InsuranceCompany.

23. ACE has without legal basis, refused to defend and indemnify CLK in theunderlying personal injury action commenced by Jane Burgdoerfer.

24 . To date, neither ACE Insurance Company nor ABM have acknowledgedtheir obligation under the policy of insurance and/or the contract in effect between CLKand ABM on the date of the Plaintiffs accident. Defendants have refused to defend andindemnify CLK herein in the personal injury action commenced by Jane Burgdoerfer.

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AS AND FOR FIRST CAUSE OF ACTION AGAINST ACE FOR A DECLARATORYJUDGMENT ACTION25. Plaintiff repeats, reiterates and re-alleges each and every allegation

contained in paragraph numbered 1 through 26 of the Complaint, inclusive, with thesame force and effect as if said forth at length herein.

26. The insurance policy issued by ACE Insurance Company providescoverage for all claims arising out of the underlying personal injury action commencedby Jane Burgdoerfer.

27. The failure of ACE Insurance Company to honor its obligations to defendand indemnify CLK constitutes a breach of its policy of insurance on which CLK is anadditional and/or named insured.

28. As a result of the foregoing, CLK has suffered and will continue to sufferdirect and consequential damages.

29. As a result of the foregoing, an actual and justiciable controversy existsbetween CLK and ACE Insurance Company and between CLK and ABM regardingACE's obligation under its policy of insurance.

30. All of the conditions precedent to coverage under the policy issued byACE Insurance on which CLK is a named and/or additional insured have been compliedwith by Plaintiff CLK.

31. ACE's refusal to defend and indemnify CLK in the underlying personalinjury action com menced by Jane Burgdoerfer is without a basis in law or fact.

WHEREFORE, Plaintiff CLK demands judgment against the Defendants asfollows:

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A. Determine and declare that the underlying personal injury actioncommenced against Plaintiff CLK herein is covered under the policy of insurance issuedby ACE and identified in this Complaint;

B. Determine and declare that the Defendant ACE is obligated under thepolicy of insurance to defend and indemnify CLK in the underlying personal injury actioncommenced by Jane Burgdoerfer to the full extent of the policy limits;

C. Determine and declare that the policy of insurance issued by ACE to ABMon which CLK is a named or additional insured for its primary coverage for the defenseand indemnification of CLK in the underlying personal injury action commenced by JaneBurgdoerfer;

D. Determine and declare that the Defendant ACE is required to reimbursethe Plaintiff CLK herein for all of its attorney's fees, costs and other expenses incurredto date for the defense of the underlying personal injury action, as well as requiringpayments for all attorney's fees, costs and other expenses hereinafter incurred by thePlaintiff herein, with regard to said underlying personal injury action;

E. And for such other, further and different relief as to this Court may deemjust and proper.DATED: New York, New YorkNovember 14, 2011

YOURS, etc.,CARTAFALSA, SLATTERY, TURPIN & LENOFF

By: BRIAN J. DALTONAttorneys for PlaintiffCLK/HP 90 MERRICK, LLC,

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-L-

Index No.SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OFNEW YORK

CLK/HP 90 MERRICK, LLC,Plaintiff,

-X

against - < 2'#Q**32,ACE AMERICAN INSURANCE COMPANY AND ABM JANITORIAL SERVICES -NORTHEAST, INC.,

De f e nd a n t s .

DECI MTQRY 4UJ>?MENT COMPLAINT AND SUMMOELEQCARTAFALSA, SLATTERY, TURPIN & LENOFFAttorneys for Defendant(s) CLK/HP 90 MERRICK LLC ^Qy 9 o165 Broadway - 28 th Floor ' * # gOtfNew York, New York 10006 COUftTy^,(212)225-7700 ^ A ^ g ^C g

TO:Attorney(s) forService of a copy of the within is hereby admitted.Dated: Attorney(s) forPLEASE TAKE NOTICED that the within is a (certified) true copy of a(n) entered inNotice of Entry th e office of the within named Court on ,200 that an Order of which th e within is a true copy will be presented forNotice of Settlement settlement to the Hon. , one of the judges of the within

named Court, at on , 200 , at 9:30 a.m.Dated: New York, New York

clk/hp 90 merrick, llc v. ace american insurance company, et al summons/complaints

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