( A R C ) 56892 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK

----------_____________________________ -X

VICTOR BAEZ-RENDON, Plaintiff, -against250 BOWERY PROJECT LLC and FOUNDATIONS

Index No.: 113354/08

THIRD-PARTY S W O N S

GROUP INC.,

Third-party Plaintiff, -against4

TP Index No.:

GCM METAL INDUSTRIES, I N C . ,

Third-party Defendant. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - - _ - -X - _ _ - - _ - - - -TO THE ABOVE NAMED THIRD-PARTY DEFENDANT:

YOU ARE HEREBY SUMMONED-to answer the Complaint of the Third-

Party Plaintiff, and the Complaint of the plaintiff, copies of which are herewith served upon you and to serve copies of your Answer upon the undersigned attorneys for defendant/third-party plaintiff and upon Joseph T. Mullen, Jr.
&

Associates, attorneys

for the plaintiff, whose office is located a t 30 Vesey Street, 15th Floor, New York, New York 10007, within twenty (20) days after service of this Summons and Third-party Complaint, or thirty (30) days if not personally served with the State of New York, exclusive of the day of service.

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PLEASE TAKE NOTICE, that in case of your failure to answer the

Complaint of the third-party plaintiff, judgment will be taken against you by default for the relief demanded in the Third-party Complaint. Dated: New York, New York December 30, 2008

McFpE
Yours, etc.,
B
A C ROSSILLO

Attorneys for Defendant/ Third-party Plaintiff FOUNDATIONS GROUP INC. Office & P . O . Address Two Rector Street - 22nd Floor New York, New York 10006
(212) 766-1888

TO:

JOSEPH T. MULLEN, JR. & ASSOCIATES Attorneys for Plaintiff 30 Vesey Street, 15th Floor New York, New York 10007
(516) 766-1177 250 BOWERY PROJECT LLC
c / o Peter Moore Associates

515 Canal Street, 1C New York, New York 10013

GCM METAL INDUSTRIES, INC. 420 Troutman Street Brooklyn, New York 11237

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, .

Index No.: 113354/08 -against2 5 0 BOWERY PROJECT LLC and FOUNDATIONS GROUP INC.,

THIRD-PARTY COMPLAINT

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Defendants. _ - - _ _ - - - _ _ _ - - _ _ - _____-__ X
FOUNDATIONS GROUP INC.,
<+

/ Third-party Plaiwiff

-againstGCM METAL INDUSTRIES, INC.,

<

9
$0
G # t

TP Index No.:

-w

_____________________--___---__--_
Third-party plaintiff , FOUNDATIONS its attorneys, MORRIS DUFFY ALONSO
&

Third-party*Defekqt$$ %? I

co

-%$*
INC., by and through
FALEY, as and for a Third-

Party Complaint against third-party defendant GCM METAL INDUSTRIES, INC., upon information and belief, respectfully allege that at all times hereinafter mentioned: FIRST : That at all times hereinafter mentioned, the third-

party defendant, GCM METAL INDUSTRIES, INC., is and was a foreign corporation licensed and duly authorized to do business in the State of New York. SECOND: That at all times hereinafter mentioned, the third-

party defendant, GCM METAL INDUSTRIES, INC., is and was a domestic corporation licensed and duly authorized to do business in the State of New York.

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THIRD :

That at all times hereinafter mentioned, the third-

party defendant, GCM METAL INDUSTRIES, INC., is and was a foreign corporation doing business within the State of New York. FOURTH: That at all times hereinafter mentioned, the third-

party defendant, GCM METAL INDUSTRIES, INC., actually conducted and transacted business within the State of New York and engaged in a persistent course of conduct and derived substantial revenue from goods sold, delivered and/or consumed in the State of New York as required under CPLR 302 (a)(1) & ( 3 ) . FIFTH : That by reason of tortious acts and conduct

committed within the State of New York, the third-party defendant, GCM METAL INDUSTRIES, INC., is subject to jurisdiction under CPLR
302 (a)(1).

SIXTH :

That by reason of contracting to provide goods and

services within the State of New York the third-party defendant,

GCM METAL INDUSTRIES, INC., is subject to jurisdiction under CPLR

302 (a)(1).

SEVENTH: That at all times hereinafter mentioned, the thirdparty defendant, GCM METAL INDUSTRIES, INC., is and was a Joint Venture licensed and duly authorized to do business in the State of New York.

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AS AND FOR A FIRST CAUSE OF ACTION AGAINST THE THIRD-PARTY DEFENDANT GCM METAL INDUSTRIES, INC., DEFENDANT/THIRD-PARTY PLAINTIFF ALLEGES THE FOLLOWING

EIGHTH:

The third-party plaintiff repeats, reiterates and

realleges each and every allegation heretofore alleged herein with the same force and effect as if more fully set forth herein. NINTH : On

or

about

April

9,

2007,

the

third-party

defendant, GCM METAL INDUSTRIES, INC., entered into a Contract with the defendant/third-party plaintiff. (See Exhibit A, the Contract.1 TENTH : Pursuant to the Contract entered into by and between

a copy of

FOUNDATIONS GROUP INC. and GCM METAL INDUSTRIES, INC., dated April
9, 2007, GCM METAL INDUSTRIES, INC., is obligated to defend,

indemnify and hold harmless the defendant/third-party plaintiff. (See Exhibit a copy of the Contract.) A ELEVENTH: Specifically, Article 4.6 of the Contract provides in pertinent part, as follows:

4.6 INDEMNIFICATION

4.6.1 To the fullest extent permitted by law, the Subcontractor shall indemnify and hold harmless the Owner, Contractor, Architect, Architects consultants, and agents and employees of any of them from and against all claims, damages, losses and expenses, including but not limited to attorneys fees, arising out of or resulting from performance of the Subcontractors Work under this Subcontract, provided that any such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself), but only to the extent caused by the negligent

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acts or omissions of the Subcontractor, the Subcontractors Sub-subcontractors, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder. Such obligations shall not be construed to negate, abridge, or otherwise reduce other rights or obligations of indemnity which would otherwise exist as to a party or person described in this Section
4.6.
4.6 - 2 In claims against any person or entity indemnified under this Section 4.6 by an of the Subcontractor, the employee Subcontractors Sub-subcontractors, anyone directly or indirectly employed by them or anyone whose acts they may be liable, the indemnification obligation under Section 4.6.1 shall not be limited by a limitation on the amount or type of damages, compensation or benefits payable by or for the Subcontractor or the Subcontractors Sub-subcontractors under workers compensation acts, disability benefit acts or other employee benefit acts.

liability insurance naming FOUNDATIONS GROUP I N C . as an additional

Article 13 provides in pertinent part as follows: ARTICLE 13 INSURANCE AND BONDS

13.1 The Subcontractor shall purchase and maintain insurance of the following types of coverage and limits of liability: Type of Insurance As per GCM standard Insurance Coverage and submitted Certificate of Insurance naming the required parties as additional insureds.

Coverages, whether written on an occurrence or claims made basis, shall be maintained without interruption from date of

13.2

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commencement of the Subcontractor's Work until date of final payment and termination of any coverage required to be maintained after final payment to the Subcontractor.
13.3 Certificates of insurance acceptable to the Contractor shall be filed with the Contractor prior to commencement of the Subcontractor's Work. These certificates and the insurance policies required by this Article 13 shall contain a provision that coverages afforded under the policies will not be canceled or allowed to expire until at least 30 days' prior written notice has been given to the Contractor. If any of the foregoing insurance coverages are required to remain in force after final payment and are reasonably available, an additional certificate evidencing continuation of such coverage shall be submitted with the final application for payment as required in Article 12. If any information concerning reduction of coverage is not furnished by the insurer, it shall be furnished by the Subcontractor with reasonable promptness according to the Subcontractor's information and belief.

13.4 The Contractor shall furnish to the

Subcontractor satisfactory evidence of insurance required of the Contractor under the Prime Contract. THIRTEENTH: provided the In addition, Exhibit requirements
*

of

said

contract insured

insurance

and

additional

requirements. See Exhibit 'A" FOURTEENTH:

That at all times hereinafter mentioned the

third-party defendant, GCM METAL INDUSTRIES, INC., performed work pursuant to the aforementioned Contract, including the facade and balcony restoration. FIFTEENTH: On or about October 2,
2008, plaintiff, an

employee of GCM METAL INDUSTRIES, INC., commenced an action against

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FOUNDATIONS GROUP INC., alleging that he was injured on ~ u n e19,

2007 at the premises located at 250 Bowery, New York, ~ e w York

during the course of his employment with GCM METAL INDUSTRIES, INC. (See Exhibit ' B " SIXTEENTH:
I

a copy of the plaintiff's Summons and Complaint. That at all times hereinafter relevant, the

third-party defendant, GCM METAL INDUSTRIES, INC., exercised complete supervision, direction and control over the activities performed by its agents, servants or employees. SEVENTEENTH: That INDUSTRIES, I N C . , the third-party defendant, GCM

METAL

furnished, supplied and provided equipment,

materials and other items which it knew were to be utilized in connection with the work performed upon the said premises at the time in question. EIGHTEENTH: That if the plaintiff sustained any of the

damages alleged, other than through his own negligence, and if defendant/third-party plaintiff is held liable for any portion of those damages, which is expressly denied, such damages were sustained by reason of the carelessness, recklessness, negligence and/or acts of omission or commission by the third-party defendant, GCM METAL INDUSTRIES, INC., its agents, servants and/or employees in that, among other things, the third-party defendant, GCM METAL INDUSTRIES, INC., failed to take due and proper precaution to prevent damage or injury of any kind or nature to all persons, whether employees of the contractor or otherwise, arising out of or occurring in connection with the execution of the work provided f o r

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*- "'

in this Contract, in failing to meet the necessary standards in the industry, in failing to meet the standards expressed and implied in the Contract, and in general, being negligent, careless and reckless without any overt, active or proximate negligence of the defendant/third-party plaintiff in any way contributing thereto. NINETEENTH: That by reason of the foregoing, the third-

p a r t y defendant, GCM METAL INDUSTRIES, INC., will be liable to the

defendantlthird-party plaintiff in the event and in the full amount of any recovery herein by the plaintiff against the

defendant/third-party plaintiff or for that proportion thereof caused by the relative responsibility of the third-party defendant, GCM METAL INDUSTRIES, INC., and it is bound to pay any and all attorneys' fees, disbursements, costs of investigation and costs

for the defense of this action.

TWENTIETH: That by reason

of

the

foregoing,

the

defendantlthird-party plaintiff is entitled to judgment over and against the third-party defendant, GCM METAL INDUSTRIES, INC., in such amount as is proportionate to the degree in which the negligence and fault of the third-party defendant, GCM METAL INDUSTRIES, INC., caused and contributed to the damages sustained by the plaintiff and defendant/third-party plaintiff.
AS AND FOR A SECOND CAUSE OF ACTION AGAINST THE

THIRD-PARTY DEFENDANT GCM METAL INDUSTRIES, 1NC.r DEFENDANT/THIRD-PARTY PLAINTIFF ALLEGES THE FOLLOWING

TWENTY-FIRST: The defendant/third-party plaintiff repeats, reiterates and realleges each and every allegation heretofore

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'.*

alleged herein with the same force and effect as if more fully set forth herein. TWENTY-SECOND: That if the plaintiff sustained any of the alleged damages other than through his own negligence, and if the defendant/third-party plaintiff is held liable for any portion of those damages, which it denies, those damages were caused in whole or in part by the negligent a c t s and/or omissions of the thirdparty defendant, GCM METAL INDUSTRIESl INC., and not by any negligence on the part of the defendant/third-party plaintiff FOUNDATIONS GROUP INC. TWENTY-THIRD: That by reason of the foregoing, if the

plaintiff should recover against defendantlthird-party plaintiff for any of the damages alleged in the Complaint, the third-party defendant shall be liable to indemnify defendantlthird-party

plaintiff on the basis of apportionment of responsibility for all

or part of any judgment in such proportion as the Court or jury may

direct.
AS AND FOR A THIRD CAUSE OF ACTION AGAINST THIRD-PARTY DEFENDANT GCM METAL INDUSTRIES, INC., DEFENDANT/THIRD-PARTY PLAINTIFF ALLEGES THE FOLLOWING

TWENTY-FOURTH: The defendantlthird-party plaintiff repeats, reiterates and realleges each and every allegation heretofore alleged herein with the same force and effect as if more fully set forth herein. TWENTY-FIFTH: That pursuant to the agreement between the defendant/third-party plaintiff and third-party defendant, GCM

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METAL INDUSTRIES, INC., the said third-party defendant agreed to

indemnify and hold harmless the defendant/third-party plaintiff, its agents and employees against all claims, damages and expenses, including attorneys' fees, arising out of or resulting from any negligent act or omission of the third-party defendant or anyone employed by or working at the direction or under the supervision of the third-party defendant.
TWENTY-SIXTH:

If

the

plaintiff

sustained

the

damages

complained of due to any negligence, carelessness or recklessness other than that of his own, which is expressly denied, and if the plaintiff should recover a judgment against the defendant/thirdparty plaintiff, such recovery and judgment will fall within the provisions of the aforesaid agreement and of the aforesaid

indemnification clause heretofore alleged and the third-party defendant, GCM METAL INDUSTRIES, INC., will be liable over to and will be bound to indemnify the defendantlthird-party plaintiff in the amount of any such judgment and recovery, together with the
c o s t s and disbursements of this action, in addition to attorneys'

fees and costs of investigation. WHEREFORE, defendant/third-party plaintiff, FOUNDATIONS GROUP

INC., demands judgment against this third-party defendant, GCM
METAL INDUSTRIES, INC., for any sums that may be recovered against

the defendant/third-party plaintiff by the plaintiff, together with the costs, disbursements and expenses and attorneys' fees of this action, or for that proportion thereof caused by the relative

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responsibility of the third-party defendant, for the plaintiff's damages and the defendantlthird-party plaintiff, FOUNDATIONS GROUP INC., demand judgment over and against the third-party defendant, determining that the third-party defendant is the insurer of the defendant/third-party plaintiff f o r and with respect to the occurrence alleged in the plaintiff's Complaint, and that the third-party defendant, pay that portion of any verdict or judgment which may

be

obtained

herein

by

the

plaintiff

against

defendant/third-party plaintiff and all attorneys' fees and all other costs, together with the costs and disbursements of the defense of this action. Dated: New York, New York December 3 0 , 2 0 0 8

By :

LINA C ROSSILLO Attorneys for Defendant/ Third-party Plaintiff FOUNDATIONS GROUP INC. Office & P . O . Address Two Rector Street - 22"d Floor New York, New York 10006
( 2 1 2 ) 766-1888

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( A R C ) 56892

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK

VICTOR BAEZ-RENDON,
Plaintiff,
-against250 BOWERY PROJECT LLC and FOUNDATIONS GROUP INC.,
........................................

Index No.: 113354/08

NOTICE PURSUANT TO CPLR 3402B

Defendants.

-X
TP Index No.:

FOUNDATIONS GROUP INC., Third-party Plaintiff, -againstGCM METAL INDUSTRIES, INC.,

........................................

Third-party Defendant.

-X

PLEASE TAKE NOTICE, that the above-named third-party defendant, GCM METAL INDUSTRIES, I N C . , has been made a party to the within action and that the caption of the action has been changed as indicated above.

Dated :

New York, New York December 30, 2 0 0 8 Yours, etc. , MORR By : LINA C ROSSILLO Attorneys for Defendant/ Third-party Plaintiff FOUNDATIONS GROUP INC. Office & P.O. Address Two Rector Street - 22"' Floor New York, New York 10006
(212) 766-1888

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-*.

TO:

JOSEPH T. MULLEN, JR. & ASSOCIATES Attorneys f o r Plaintiff 30 Vesey S t r e e t , 15th Floor N e w York, N e w York 1 0 0 0 7
( 5 1 6 )766-1177

250 BOWERY PROJECT LLC

c/o Peter Moore Associates 515 Canal S t r e e t , 1C N e w York, N e w York 10013

GCM METAL I N D U S T R I E S , INC. 420 Troutman Street Brooklyn, N e w York 11237

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SUPREME COURT OF THE STATE O F NEW YORK

INDEX NO. 1 1 3 3 5 4 / 0 8

COUNTY OF NEW YORK

VICTOR BAEZ-RENDON,

Plaintiff, -against250 BOWERY PROJECT LLC a n d FOUNDATIONS

GROUP INC.,
Defendants.
And Another T h i r d - p a r t y Action.

THIRD-PARTY S-NS,

THIRD-PARTY COMPLAINT AND NOTICE PURSUANT TO CPLR 3402B

MORRIS DUE'EY ALONSO 6 FALEY Attorneys for Defendant / T h i r d - P a r t y Plaintiff FOUZVMTIONS GROUP mc. Two Rector Street, 22nd F l o o r New York, N e w York 1 0 0 0 6
(212) 766-1888

PLEASE TAKE NOTICE :

[ I NOTICE OF ENTRY that t h e within is a ( c e r t i f i e d ) t r u e copy of a d u l y e n t e r e d i n t h e o f f i c e of t h e c l e r k of t h e w i t h i n named c o u r t on 20

[I NOTICE OF SETTLEMENT t h a t an o r d e r which t h e within i s a t r u e copy w i l l be p r e s e n t e d f o r s e t t l e m e n t t o t h e HON. one o f t h e j u d g e s of t h e w i t h i n named c o u r t , a t

On

of

20

at

M..
WORRIS DUFEY ALONSO & FALEY

Attorneys for D e f e n d a n t / Third-party P l a i n t i f f Two Rector Street, 22"d F l o o r N e w York, N e w York 1 0 0 0 6

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