SCANNED ON 11/23/2011

J.

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X CLK/HP 90 MERRICK, LLC, Plaintiff, -againstACE AMERICAN INSURANCE COMPANY AND ABM JANITORIAL SERVICES - NORTHEAST, INC., Defendants.

Index No.: SUMMONS ^SQ

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YOUR ARE HEREBY SUMMONED, to answer the CompWrto^m^Cieintiff CLK/HP 90 Merrick, LLC and to serve copies of your answer upon the undersigned attorneys for the Plaintiff, Cartafalsa, Slattery, Turpin & Lenoff, One Liberty Plaza, 165 Broadway, 28th Floor, New York, NY 10006, within 20 days after service of this Summons and Complaint, exclusive of the day of service within 30 days after the completion.of service where service is made in any manner other than by personal delivery within the state. In the case of your failure to answer the Complaint of the Plaintiff, a judgment will be taken against you by default for the relief demanded in Plaintiffs Complaint. PLEASE TAKE NOTICE that this is an action for declaratory relief. DATED: New York, New York November 14, 2011 YOURS, etc., CARTAFALSA, SLATTERY, TURPIN & LENOFF

By: BRIAN J. DALTON Attorneys for Plaintiff

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CLK/HP 90 MERRICK, LLC, One Liberty Plaza 165 Broadway, 28th Floor New York, New York 10006 (212) 225-7700 TO: ACE American Insurance Company 436 Walnut Street Philadelphia, PA 19106 Attorney for Service CT Corporation System 350 North St. Paul Street Dallas, TX 75201 ABM Janitorial Services-Northeast, Inc. 551- Fifth Avenue New York, New York 10178

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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X CLK/HP 90 MERRICK, LLC, Plaintiff, -against-

Index No.: Basis of Venue: Defedant's Residence

DECLARATORY
ACE AMERICAN INSURANCE COMPANY AND ABM JANITORIAL SERVICES - NORTHEAST, INC., Defendants. X JUDGMENT COMPLAINT

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, as follows: 1. This action is commenced to determine the rights and obligations between

Plaintiff and Defendants with regard to a specific contract of insurance and with reference to Plaintiffs liabilities or potential liabilities stemming from an accident of the Plaintiff in an underlying personal injury action, Jane Burgdoerfer which allegedly occurred on June 23, 2009. THE PARTIES 2. At all times hereinafter mentioned Plaintiff CLK was and still is a domestic

corporation duly organized and existing under and by virtue of the laws of the State of New York. 3. At all times hereinafter mentioned Defendant, ACE American Insurance

Company (hereinafter ACE), was and still is an insurance company organized and existing 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 an

insurance company organized and existed under and by virtue of the laws of the State of Texas. 5. At all times hereinafter mentioned that Defendant, ACE was and still is a

foreign insurance company transacting business in the State of New York. 6. At all times hereinafter mentioned t Defendant ACE issued a commercial

general liability policy to the Co-defendant, ABM Janitorial Services - Northeast, Inc. (hereinafter ABM). 7. At all times hereinafter mentioned that Defendant, ABM was and still is a

domestic corporation doing business in the State of New York. 8. At all times hereinafter mentioned that Defendant, ABM was and still is a

foreign corporation doing business in the State of New York. 9. At all times hereinafter mentioned Defendant, ACE issued a commercial

general liability policy providing coverage to ABM. Said policy of insurance was in full force and effect on the date of Jane Burgdoerfer's accident which allegedly occurred on June 23, 2009.

ALLEGATIONS APPLICABLE TO ALL CAUSES OF ACTION 10. 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, New York. 11. Jane Burgdoerfer has commenced an action for damages for personal In her action for damages for

injuries in the Supreme Court, New York County.

2
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personal injuries Plaintiff alleges she was injured on June 23, 2009 at the premises known as 90 Merrick Avenue, East Meadow, New York. A copy of Jane Burgdoerfer's Complaint is attached as Exhibit "A". 12. The Plaintiff herein, CLK, served an answer in the personal injury action

commenced by Ms. Burgdoerfer. Attached as Exhibit "B" is a copy of CLK's answer in the underlying personal injury action. 13. Attached as Exhibit "C" is a copy of Defendant ABM'S answer in the

underlying 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 the contract between CLK and ABM 15. Pursuant to the agreement between CLK and ABM, ABM was to perform

and furnish all of the work, labor, services, materials, and all things necessary for the completion of its work as said forth in the contract documents. 16. Pursuant to the contract, ABM, agreed to the fullest extent permitted by

law, to indemnify, defend and hold harmless CLK from and against any and all accidents, claims, suits, damages and/or liability alleged to arise out of or in connection with or as a consequence of the performance or non-performance of its work. 17. The underlying contract between CLK and ABM requires that ABM

procure, maintain and furnish a policy of insurance with a limit of liability for bodily injury/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 a

commercial umbrella excess policy with coverage limits of a minimum of $5,000,000.00 of combined single limit and aggregate limit. 19. Pursuant to said agreement ABM was required to name CLK as additional

insureds under the commercial general liability policy as well as on the excess policy. 20. Pursuant to the contract between CLK and ABM, CLK was to be named

as an insured under the primary commercial general liability policy issued by ACE to ABM and on the excess insurance policy which upon information and belief was issued by ACE Property & Casualty Insurance Company. The excess policy number was Policy No. XOOG24903382. 21. Upon information and belief, CLK was an additional insured and/or named

insured under the policy of insurance issued by ACE to ABM for the time of Plaintiffs accident. 22. CLK, and/or its legal representatives, had previously tendered the defense

and indemnity of CLK to ABM and its insurance company Ace American Insurance Company. 23. ACE has without legal basis, refused to defend and indemnify CLK in the

underlying personal injury action commenced by Jane Burgdoerfer. 24. To date, neither ACE Insurance Company nor ABM have acknowledged

their obligation under the policy of insurance and/or the contract in effect between CLK and ABM on the date of the Plaintiffs accident. Defendants have refused to defend and indemnify 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 DECLARATORY JUDGMENT ACTION 25. Plaintiff repeats, reiterates and re-alleges each and every allegation

contained in paragraph numbered 1 through 26 of the Complaint, inclusive, with the same force and effect as if said forth at length herein. 26. The insurance policy issued by ACE Insurance Company provides

coverage for all claims arising out of the underlying personal injury action commenced by Jane Burgdoerfer. 27. The failure of ACE Insurance Company to honor its obligations to defend

and indemnify CLK constitutes a breach of its policy of insurance on which CLK is an additional and/or named insured. 28. As a result of the foregoing, CLK has suffered and will continue to suffer

direct and consequential damages. 29. As a result of the foregoing, an actual and justiciable controversy exists

between CLK and ACE Insurance Company and between CLK and ABM regarding ACE's obligation under its policy of insurance. 30. All of the conditions precedent to coverage under the policy issued by

ACE Insurance on which CLK is a named and/or additional insured have been complied with by Plaintiff CLK. 31. ACE's refusal to defend and indemnify CLK in the underlying personal

injury action commenced by Jane Burgdoerfer is without a basis in law or fact.

WHEREFORE, Plaintiff CLK demands judgment against the Defendants as follows:

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A.

Determine and declare that the underlying personal injury action

commenced against Plaintiff CLK herein is covered under the policy of insurance issued by ACE and identified in this Complaint; B. Determine and declare that the Defendant ACE is obligated under the

policy of insurance to defend and indemnify CLK in the underlying personal injury action commenced by Jane Burgdoerfer to the full extent of the policy limits; C. Determine and declare that the policy of insurance issued by ACE to ABM

on which CLK is a named or additional insured for its primary coverage for the defense and indemnification of CLK in the underlying personal injury action commenced by Jane Burgdoerfer; D. Determine and declare that the Defendant ACE is required to reimburse

the Plaintiff CLK herein for all of its attorney's fees, costs and other expenses incurred to date for the defense of the underlying personal injury action, as well as requiring payments for all attorney's fees, costs and other expenses hereinafter incurred by the Plaintiff herein, with regard to said underlying personal injury action; E. And for such other, further and different relief as to this Court may deem

just and proper. DATED: New York, New York November 14, 2011 YOURS, etc., CARTAFALSA, SLATTERY, TURPIN & LENOFF

By: BRIAN J. DALTON Attorneys for Plaintiff CLK/HP 90 MERRICK, LLC,

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One Liberty Plaza 165 Broadway, 28th Floor New York, New York 10006 (212) 225-7700

TO:

ACE American Insurance Company 436 Walnut Street Philadelphia, PA 19106 Attorney for Service CT Corporation System 350 North St. Paul Street Dallas, TX 75201 ABM JANITORIAL SERVICES-NORTHEAST, INC 551- FIFTH AVENUE New York, New York 10178

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-L-

Index No. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK CLK/HP 90 MERRICK, LLC, Plaintiff,
< 2'#Q '**32,

-X

against-

ACE AMERICAN INSURANCE COMPANY AND ABM JANITORIAL SERVICES NORTHEAST, INC.,
Defendants.

DECI^MTQRY 4UJ>?MENT COMPLAINT AND SUMMO

CARTAFALSA, SLATTERY, TURPIN & LENOFF Attorneys for Defendant(s) CLK/HP 90 MERRICK LLC ^Qy 9 o 165 Broadway - 28th Floor ' * # gOtf New York, New York 10006 COUftTy^, (212)225-7700 ^ A ^ g ^ C g TO: Attorney(s) for Service of a copy of the within Dated: is hereby admitted. Attorney(s) for PLEASE TAKE NOTICE D that the within is a (certified) true copy of a(n) entered in Notice of Entry the office of the within named Court on ,200 that an Order of which the within is a true copy will be presented for Notice 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

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