Our File No.: 1301600195-SLP

Our File No.: 1301600195-SLP I///301710.v!

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

110 CENTRAL PARK SOUTH CORPORATION, Index No.: 652098/10

Plaintiff,

V.

112 CENTRAL PARK SOUTH, LLC, J.T. MAGEN & COMPANY, INC., and EPIC MECHANICAL CONTRACTORS, LLC,

Defendants. 112 CENTRAL PARK SOUTH, LLC,

Third-Party Index No. :652098/10 Third-Party Plaintiff,

V.

COSTAS KONDYLIS & PARTNERS, LLC, NOTICE OF MOTION GOLDSTEIN ASSOCIATES, PLLC, I.M. ROBBINS, PC, LASZLO BODAK ENGINEER, PC, CONVENTIONAL STONE & MARBLE CORP., ROSLYN ENGINEERING ASSOCIATES, PC, INDUSTRIAL WINDOW CORP., DKS CONTRACTORS,INC. cl/b/a DKS CONSTRUCTION, GACE CONSULTING ENGINEERS, PC, and INNOVATIVE CARPENTRY,

Third-Party Defendants.

PLEASE TAKE NOTICE, that upon the annexed Affirmation of Pauline F. Tutelo, Esq., dated

July 27, 2011, the exhibits annexed thereto, and all prior pleadings and proceedings heretofore had herein,

the undersigned will move this Court at Room 130, of the Civil Court of the City of New York, County of

New York, located at 60 Centre Street, New York, New York 10007, on August 17, 2011 at 9:30 A.M., or

as soon thereafter as counsel can be heard, for an order pursuant to CPLR Section 3215 granting the third-

party plaintiff, 112 CENTRAL PARK SOUTH, a default judgment against the defendants, COSTAS

INDEX NO. 652098/2010

NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 07/27/2011

KONDYLIS & PARTNERS, LLC, together with such other and further relief that this Honorable Court

deems just, proper, and equitable.

The above entitled action is for property damage. This action is not on a trial calendar.

PLEASE TAKE FURTHER NOTICE, that pursuant to CPLR Section 2214(b), answering papers,

if any, must be served on the undersigned at least seven days prior to the return date of this motion.

Date: Roseland, New Jersey July 27, 2011

Yours, etc.,

, DENNEHEY, WARNER, & GOGGIN

kUL1NE F. TUTELO Attorneys for Defendant/Third-Party Plaintiff 112 CENTRAL PARK SOUTH, LLC 425 Eagle Rock Ave., Suite 302 Roseland, NJ 07068 (973) 618-4100

To: Jay R. Fialkoff, Esq. Moses & Singer, LLP 405 Lexington Avenue New York, NY 10174 Attorneys for Plaintiff Phone No.: 212-554-7800

Bruce R. Connolly, Esq. Raiser & Kenniff 1517 Franklin Avenue Suite 300 Mineola, NY 11501 Attorneys for Defendant Epic Mechanical Contractors, LLC, Phone No.: 516-742-7600

John E. Hannum, Esq. Hannum Feretic Prendergast & Merlino, LLC 55 Broadway, Suite 202

New York, New York 10006 Attorneys for Defendant, JTMagen & Co., Inc. Phone No.: 212-530-3904

Gregory J. Spaun, Esq. Welby, Brady & Greenblatt, LLP 11 Martine Avenue White Plains, NY 10606 Attorneys for Third-Party Defendant, Industrial Window Corp. Phone No.: 914-428-2100

Douglas R. Haistrom, Esq. L’Abbate, Balkan, Colavita & Contini, LLP 1001 Franklin Avenue Garden City, New York 1 15 3 0 Attorneys for Third-Party Defendants, Goldstein Associates, LLC, IM Robbins, PC and Gace Consulting Engineers, PC Phone No.: 516-294-8844

Carl M. Perri, Esq. Clausen Miller, P.C. One Chase Manhattan Plaza - 39th Floor New York, NY 10005 Attorneys for Third-Party Defendant, Roslyn Engineering Associates, P.C. Phone No.: 212-805-3900

Innovative Carpentry 135 Logan Avenue Jersey City NJ 07306

DKS Contractors, Inc. cl/b/a DKS Corporation 90 Lexington Avenue New York, NY 10016

Laszlo Bodak Engineering, P.C. 45 West 36th Street, 3rd Floor New York, NY 10018 Costas Kondylis & Partners, LLC do Kondylis Architecture, P.C. 115 Fifth Avenue New York, NY 10003

Conventional Stone & Marble Corp. 80 Second Street Mineola, NY 11501


110 CENTRAL PARK SOUTH CORPORATION, Index No.: 652098/10

Plaintiff,

V.



Third-Party Index No. :652098/10 Third-Party Plaintiff,

V.

COSTAS KONDYLIS & PARTNERS, LLC, AFFIRMATION IN SUPPORT GOLDSTEiN ASSOCIATES, PLLC, I.M. ROBB INS, PC, LASZLO BODAK ENGINEER, PC, CONVENTIONAL STONE & MARBLE CORP., ROSLYN ENGINEERING ASSOCIATES, PC, INDUSTRIAL WINDOW CORP., DKS CONTRACTORS,INC. d/b/a DKS CONSTRUCTION, GACE CONSULTING ENGINEERS, PC, and INNOVATIVE CARPENTRY,


PAULINE F. TUTELO, an attorney duly admitted to practice law before the Courts of the State of

New York, hereby affirms the truth of the following under the penalty of perjury:

1. I am associated with the law firm of MARSHALL, DENNEHEY, WARNER, COLEMAN &

G000IN, attorneys for defendant/third-party plaintiff, 112 CENTRAL PARK SOUTH, LLC, hereinafter

"112 CPS"), and as such am fully familiar with the facts and circumstances of this action.

PRAYER FOR RELIEF

2. I submit this affirmation in support of 112 CPS’s motion for a default judgment pursuant to

CPLR § 3215 because defendant, COSTAS KONDYLIS & PARTNERS, LLC, ("CKA" unless stated

otherwise), failed to timely interpose an Answer to the third-party complaint, and for such other and

further relief this Honorable Court deems just, proper, and equitable.

NATURE OF THE INSTANT ACTION

3. The instant matter arises out of the renovation and construction of 110 Central Park South.

The plaintiff alleges that 112 CPS was negligent in the renovation/construction of this building. A copy

of Plaintiffs Summons and Complaint is annexed hereto as Exhibit "A." 112 CPS filed a third-party

complaint against CKA, among others, based on its work performed in relation to the

renovation/construction of the building. 112 CPS served its answer to the plaintiffs complaint on

February 25, 2011, a copy of which is annexed hereto as Exhibit "B". On May 9, 2011, 112 CPS’s third-

party complaint was e-filed with the court. A copy of 112 CPS’s Summons and Third-Party Complaint is

annexed hereto as Exhibit "C".

RELEVANT PROCEDURAL HISTORY

4. On November 24, 2010, Plaintiff commenced this action with the filing of a Summons and

Complaint (see Exhibit "A")

5. On February 25, 2011, 112 CPS served an Answer to the complaint annexed hereto as

Exhibit "B".

6. On May 9, 2011, 112 CPS c-filed a Summons and Third-Party Complaint, annexed hereto as

I Exhibit "C".

0

7. 112 CPS?s process server effected service of the Summons and Third-Party Complaint on CKA

on May 18, 2011. A copy of the affidavit of service is annexed hereto as Exhibit "D."

8. By letter dated May 13, 2011, you affirmant notified defendant, CKA that a lawsuit was

instituted against defendant, CKA. A copy of said correspondence is annexed hereto as Exhibit "E."

9. Notwithstanding the foregoing notification, defendants failed to timely interpose an Answer.

More than thirty days have elapsed since the service of the Summons and Complaint (see Exhibits "C"

and "D")

ARGUMENT

10. Pursuant to CPLR § 3215, the Court is authorized to enter a default when a party has failed to

timely appear and answer.

11. Herein, defendant CKA’s Answer was due within thirty days of service. Defendant CKA has I

not interposed an Answer within the time period required for answering a pleading. Moreover, defendant

CKA did not obtain an extension of time to appear and answer. As such, CKA is now in default.

12. In light of the foregoing, 112 CPS respectfully requests that this Honorable Court issue an

order granting the within motion and holding defendant CKA in default.

WHEREFORE, it is respectfully requested that the instant motion of defendant/third-party

plaintiff, 112 CENTRAL PARK SOUTH, LLC, be granted that a default judgment be entered against

defendant CKA, together with such other and further relief this Honorable Court deems just, proper, and

equitable.

Dated: Roseland, New Jersey July 27, 2011

AFFIRMATION OF SERVICE

I hereby certify that I caused the within Motion for Default Judgment to be filed with the Clerk of

the Supreme Court, County of New York County, via electronic filing and served upon the following

counsel via electronic mail:

Jay R. Fialkoff, Esq. Moses & Singer, LLP 405 Lexington Avenue New York, NY 10174 Attorneys for Plaintiff Phone No.: 212-554-7800

Bruce R. Connolly, Esq. Raiser & Kenniff 1517 Franklin Avenue Suite 300 Mineola, NY 11501 Attorneys for Defendant Epic Mechanical Contractors, LLC, Phone No.: 516-742-7600

John E. Hannum, Esq. Hannum Feretic Prendergast & Merlino, LLC 55 Broadway, Suite 202 New York, New York 10006 Attorneys for Defendant, iTMagen & Co., Inc. Phone No.: 212-530-3904

Gregory J. Spaun, Esq. Welby, Brady & Greenblatt, LLP 11 Martine Avenue White Plains, NY 10606 Attorneys for Third-Party Defendant, Industrial Window Corp. Phone No.: 914-428-2100

Douglas R. Halstrom, Esq. L’Abbate, Balkan, Colavita & Contini, LLP 1001 Franklin Avenue Garden City, New York 11530 Attorneys for Third-Party Defendants, Goldstein Associates, LLC, IM Robbins, PC and Gace Consulting Engineers, PC Phone No.: 516-294-8844

Carl M. Perri, Esq. Clausen Miller, P.C. One Chase Manhattan Plaza - 39th Floor New York, NY 10005 Attorneys for Third-Party Defendant, Roslyn Engineering Associates, P. C. Phone No.: 212-805-3900

And upon the following parties that have not yet appeared by First Class Mail:

Innovative Carpentry 135 Logan Avenue Jersey City NJ 07306

DKS Contractors, Inc. d/b/a DKS Corporation 90 Lexington Avenue New York, NY 10016

Laszlo Bodak Engineering, P.C. 45 West 36th Street, 3rd Floor New York, NY 10018 Costas Kondylis & Partners, LLC do Kondylis Architecture, P.C. 115 Fifth Avenue New York, NY 10003

Conventional Stone & Marble Corp. 80 Second Street Mineola,NY 11501

I declare under penalty of perjury that

Dated: Roseland, New Jersey July 27, 2011

EXHIBIT A


--- -- -

110 CENTRAL PARK SOUTH CORPORATION,:

Index No.: .652098/2010 Plaintiff,

MPLA1NT -against-

112 CENTRAL PARK SOUTH, LLC, J.T. : MAGEN & COMPANY INC. and EPIC MECHANICAL CONTRACTORS, LLC,

Defendants.

- ----------------- ------_-----.-------------------------x

Plaintiff, 110 Central Park South Corporation, by its attorneys, Moses & Singer LLP,

complaining of the above-named defendant, respectively alleges as follows:

THE PARTIES

1. Plaintiff 110 Central Park South Corporation ("Apartment Corporation" or

"Plaintiff’) is a cooperative apartment corporation duly formed and organized under the laws of

the State of New York, with its offices and principal place of business do Penmark Management

LLC, 770 Madison Avenue, New York, New York 10065.

2. Defendant 112 Central Park South, LLC ("Sponsor" or "112 CPS") is a limited

liability company organized and existing under the laws of the State on New York, with its

offices and principal place of business do Anbau Enterprises, Inc., 206 Fifth Avenue, New York,

New York 10010.

8450490 012849.0101

1

_

3. Defendant 112 CPS is the Sponsor of a Cooperative Offering Plan (the "Offering

Plan") for the sale of cooperative apartments at the building located at and known as 110 Central

Park South, New York, New York (the "Building").

4. Defendant J.T. Magen & Company inc. ("Magen") is a domestic corporation duly

organized under the laws of the State of New York with its principal offices located at 44 West

28’ Street, New York, New York 10001.

5. Defendant Epic Mechanical Contractors, LLC (’Epic") is a domestic limited

liability company duly organized under the laws of the State of New York, with its principal

offices located at 76 Mall Drive, Commack, New York 11725.

6. Plaintiff is the owner of the fee of the Building and is the lessee of the entire land

upon which the Building stands under a certain Amended and Restated Agreement of Lease for a

term of approximately ninety-eight (98) years (the "Ground Lease").

7. Sponsor’s leasehold interest in the property was transferred to Plaintiff in

accordance with the Offering Plan on or about April 5, 2006.

FACTUAL BACKGROUND

8. At the time of the initial presentation of the Offering Plan, the Building was

comprised of a twenty-six (26) story building of pre-war construction, which was undergoing a

"gut renovation" which included the addition of three (3) newly constructed stories.

9. The Sponsor was responsible for designing, contracting and supervising the

renovation and construction of the Building with the express intention of selling shares of the

Apartment Corporation allocated to the individual apartments located therein.

10. The Building was to be completed substantially in accordance with the Plans and

Specifications prepared by David West, R.A. of Costas Kondylis and Partners LLP in connection

with the Offering Plan.

8450490 012849.0101 2

11. Defendant Magen was the general contractor for the gut renovation and

construction of the Building- g-

12.

Defendant Epic was the mechanical contractor for the Building.

13. As defined in the Offering Plan, "Plans and Specifications" are "[t]he

architectural and engineering plans and specifications prepared by Sponsor’s architects and

engineers for the Building as described in the Architect’s Report included in Part H of this Plan"

(Offering Plan, p. 21).

14. Upon information and belief, on or about April 8, 2005 the Offering Plan was

accepted for filing by the New York. State Attorney General’s Office. The Offering Plan,

including the twenty (20) amendments thereto, is incorporated by reference herein as though

fully set forth at length.

15. Following the acceptance of the Offering Plan by the Attorney General’s Office,

the Sponsor presented it to prospective purchasers and began offering for sale the shares

allocated to sixty-eight (68) Residential Units and one (1) Commercial Unit in the Building.

16. The Sponsor declared the Offering Plan effective in or about January, 2006.

THE OFFERING PLAN

17. The Offering Plan contains, inter alia, a section entitled "Rights and Obligations

of Sponsor," in which the Sponsor represented and covenanted as follows:

"Sponsor will, at its sole cost and with reasonable diligence, complete the construction of the Building substantially in accordance with the Plans and Specifications described in this Offering Plan and Exhibits thereto, and with a quality of construction comparable to currently prevailing standards. (See Rights and Obligations of the Sponsor, Offering Plan p. 114, 14).

"Sponsor will bear all costs and expenses incurred in connection with the construction of the Building .. .whether incurred prior or subsequent to the Commencement Date." (See Rights and Obligations of the Sponsor, Offering Plan, p. 115, 15].

945049v9 012849.0101 3

"All Apartments and the Building will be sold only as described in this Plan. The quality of construction will be comparable to local standards customary in the particular trade and substantially in accordance with the Plans and Specifications. (See Rights and Obligations of the Sponsor, Offering Plan p. 117,116(i)).

18. In the Sponsors Certification, which is also part of the Offering Plan, the Sponsor

representsas follows:

"We have read the entire Offering Plan. We have investigated the facts set forth in the Offering Plan and the underlying facts. We have exercised due diligence to form a basis for this certification. We jointly and severally certify that the Offering Plan does, and that documents submitted hereinafter by us which amend or supplement the offering plan will: (1) set forth the detailed terms of the transaction and be complete, current and accurate; (ii) afford potential investors, purchasers and participants an adequate basis upon which to found their judgment; (iii) not omit any material fact; (iv) not contain any untrue statement of a. material fact; (v) not contain any fraud, deception, concealment, suppression, false pretense or fictitious or pretended purchase or sale; (vi) not contain any promise or representation as to the future which is beyond reasonable expectation or unwarranted by existing circumstance; and (vii) not contain any representation or statement which is false, where we: (a) knew the truth; (b) with reasonable effort could have known the truth; (c) made no reasonable effort to ascertain the truth, or (d) did not have knowledge concerning the representations or statement made." (See Sponsor’s Certification included in the Offering Plan at p. 233).

19. The Offering Plan further states that "[t]he Building will be completed

substantially in accordance with the Plans and Specifications prepared by David West, R.A. of

Costas Kondylis and Partners LLP, which are on file in the office of the Sponsor and will

conform to all applicable laws." (Offering Plan, p. 23).

20. The Architect’s certification attached to the Offering Plan (see p. 234 of the

Offering Plan), provides that the Architect’s Report (denominated in the Offering Plan as

"Description of the Property and Specifications", at Offering Plan p. 140, et seq.) which relies in

8450490 012849.0101 4

Pan upon the Plans and Specifications, was intended to provide an accurate description of the

condition of the property upon completion of construction.

21. The Architect’s Report states, in pertinent part:

B. Status of Consfruction

4. Description of Work:

The existing exterior of the Building is to remain except for new replacement windows on the north elevation, a few new openings with new windows and new roofing surfaces. A new addition will be added at the top of the building consisting of floors P1, P1, 29 and bulkhead.. .There will be a major interior. rehabilitation of the entire building except as provided in the Plan. Substantially all mechanical equipment, plumbing, sprinklers, electrical systems, will be replaced.. .Partitions and finishes, will be replaced." (Architect’s Report p. 2).

E. Sub Soil Conditions

� The existing foundation wails are poured-in-place reinforced concrete. There is an active leak through the foundation wail facing Central Park South channeled to existing sump pumps. The source of the leak is from ground water seepage...

The condition will be corrected as follows:

Placing of tell-tales across the crack to make it possible to make sure that further movement is not occurring when observed periodically.

The crack and leak will be remedied by means of internally applied waterproofing of the type normally used for structures below the water table.

Since it is likely that much time has passed since this damage occurred, it is unlikely to recur. Notwithstanding the foregoing, should the structural engineer at any time during the ’Monitoring Period’ determine that the severity of the cracking has materially increased and that corrective work is required, then, Sponsor shall pay for such corrective work even though the initial closing has occurred.

(Architect’s Report, pp. 5 -6).

845049v9 012849.0101 5

I. Structural System

2. Exterior Walls

The existing exterior walls are solid brick construction and brick on terracotta or block back-up in some locations, generally with a plaster finish at the interior. The walls are approximately one foot thick. The lower two floors of the street facades have a limestone veneer over the brick. At various locations, terracotta is used as a decorative trim. The walls, facings, detailings, lintels, sills and back-ups are generally in good condition.

� In some areas the brickwork has . been repointed. and � cracked and damaged bricks have been replaced. All brick and

terracotta surfaces will be cleaned. Spalled areas of the terracotta trim will be patched and coated with a masonry paint. All open and/or deteriorated joints in the terracotta and limestone will be grouted and/or caulked. All lintels will be cleaned and painted. The repair work specified in relation to the open and deteriorated joints in the terra cotta will cure the defects and last for many. years.

As the ornamentation appears to be in good condition, with minor exceptions, it will be left untouched except for pointing, caulking, surface treatment (paint) and correction of discovered cracks or other discovered defect. However, neither Sponsor nor the undersigned will be responsible for the means, methods, or procedures used in the original installation of this ornamentation, nor for the adequacy or condition of anchors or other supports that are not open to visual inspection.

The new facades above the 27th floor will be 4 inch face brick, 2 inch cavity, Gypsum wallboard sheathing applied to 6" metal studs with 3-1/2" foil-faced fiberglass insulation. A steel relieving angle attached to the building structure will support the exterior brick and trims. These new exterior masonry walls, inclusive of the interior finish, will have an aggregate nominal thickness of l’-l" and an "R" rating of 11.

All existing interior walls at the Residential Apartments will receive an interior finish of 518" inch gypsum board applied to generally 3 5/8" metal studs with 3-1/2" foil-faced fiberglass insulation. The exterior masonry walls, inclusive of the new interior finish will have an aggregate nominal thickness of F-4" and an "R" rating of 11.

(Architect’s Report, pp. 8-9).

845049v9 012849.0101 �. 6

3. Doors and Windows

For the most part, window and terrace door masonry openings located in the existing exterior walls are existing. The existing windows to remain are double hung units and are of aluminum construction with bronze anodized or baked enamel paint finish. A few new openings will be cut into the exterior wall for new windows. Exterior windows, on the north façade, and terrace doors will all be replaced with new casement or fixed units, and shall be of aluminum construction with bronze anodized or baked enamel paint finish (color to be selected by Architect) and glazed with factory-assembled 1" insulating glass units rated "CBA" by the insulating Glass Certification Council. The : manufacture of these new custom windows is Wausau,. Fulton, Traco or Mannix or approved equal. No screens or separate storm windows will be provided. All exterior windowsills will be existing or new aluminum or new GFRC (glass fiber reinforced concrete). The perimeter of all windows will be caulked to control water and air infiltration. The overall condition of all windows to remain is good.

Structural performance: Withstand without excessive deflection, damage or impairment of function the wind load established by the requirements of the New York City Building Code.

Local Law 11 report will be due in five year cycles. The next cycle should be in 2006. The Sponsor is currently performing all of the necessary work set forth in the Local Law 11 report, dated September, 30, 2002, with respect to the Building and will complete the work prior to closing.


6. Balconies and Terraces

The terraces will have a deck finish of new concrete payers, new or existing masonry, new or existing masonry, stone, or GFRC coping, and painted metal rails if required. The existing parapets and copings that are to remain after the renovation of the Building are generally in good condition. Access to the terraces will be through new swing doors constructed of insulated tempered glass in aluminum frames.

845049v9 012849.0101 7

Any existing components of the balconies and terraces to remain will be repaired if damaged during construction and be in good condition.

(Architect’s Report, p. 11).

L. Heating, Ventilation & and [sic) Air Conditioning

1. General:

.The central system is designed to provide sufficient heat to maintain inside conditions of 70 degrees Fahrenheit when the outside conditions are 11 degrees Fahrenheit and sufficient air conditioning to maintain inside conditions of 78 degrees Fahrenheit and 50% relative humidity when the outside conditions are 89 degrees Fahrenheit dry bulb and 73 degrees Fahrenheit wet bulb. The system is designed to meet the requirements of the New York State Energy Code May 2002.


22. The Sponsor, in the section of the Offering Plan entitled "Statement of Building

Conditions" (Offering Plan, p.125), adopts the "Description of Property and Specifications" set

forth in the Offering Plan, which, in pertinent part, is set forth above, and represents that it

accurately summarizes the general nature of the systems, materials, equipment, appliances and

fixtures to be contained in the Building on completion of construction.

23. Sponsor further states that "there are no defects or need for major repairs to the

Property, except as may be set forth in the Description of Property and Specifications." (Offering

Plan, p.125)

24. In connection with the purchase of the shares allocated to a Residential Unit, each

purchaser executed a Purchase Agreement with the Sponsor (the "Purchase Agreement", pp.

126-139 of the Offering Plan).

845049v9 012849.0101 8

25. The Purchase Agreement made the Offering Plan, including all amendments, the

Proprietary Lease and the By�Laws, a part of the Purchase Agreement (Purchase Agr, §1, p.

128), and further stated as follows:

"The construction of the Building and the Apartment, including the materials, equipment and fixture to be installed therein, shall be substantially in accordance with the Plan and Exhibits thereto and the architectural plans and specifications for the Building, with a quality of construction comparable to currently prevailing standards.. .nothing herein contained shall excuse Sponsor from its obligation to correct any defects in construction in accordance with the conditions set forth in the plan in the section entitled ’Rights and Obligations of Sponsor." (Purchase Agr. §4, Offering Plan p. 129)

ACTUAL CONDITIONS EXISTING AFrER CONSTRUCTION

26. Numerous conditions exist at the Building which diverge from the representations

contained in the Offering Plan with respect to the conditions of the Building once completed, and

work was done which is not of a quality of construction comparable to prevailing building and

code standards.

27. Included among these conditions are deficiencies in the roofing of the Building,

such as improper terminations of flashing materials at drains, walls and pipe penetrations

deficiencies in the Building façade causing water penetration and air infiltration, improperly

installed and improperly insulated HVAC/PTAC units, and continued leaking into the basement

of the Building.

28. In addition, the interior finish of the exterior walls in the Residential Units was

improperly installed, and not in accordance with the detailed description contained in the

Architect’s Report.

29. Thus, the numerous conditions include, but are not limited to:

(a) Water leakage in the apartments, caused by, among other things, open roof flashing, unsealed doorsills, open masonry joints and incorrectly pitched PTAC sleeves;

845049v9 012849.0101 9

(b) Deterioration of the Building’s façades, including - cracked, spalled and unstable terra-cotta units, open mortar joints;

(c) Improper repairs on the Building façades, including:

(i) lintel replacement;

(ii) air conditioning louver replacement;

(iii) terra cotta joints caulking;

(iv) patching;

(v) masonry coating and brick crack caulking;

(d) Masonry deficiencies on the facades of the three new floors and leaks above the 27 th floor terrace doors;

(e) Inadequate detailing of facades between the additional floors and the existing masonry exterior wails;

(f) Humidity, cooling, heating, and condensation issues experienced at the air conditioning units installed at the Building, caused by, among other things, the defective manner of installation, insulation and sealing of the PTAC unit sleeves, as specified above

(g) Caulking materials utilized in connection with the façade work at the Building consisted of asbestos containing materials.

30. In addition, numerous deficiencies exist that both fail to comply with the Offering

Plan and fail to comply with the applicable building code and energy code regulations, including

but not limited to failure to comply with Local Law 11, lack of fireproofing, firestopping and

smoke seals, missing sprinkler heads, non-compliant piping in the common area air conditioning

room, voids in the back up masonry, non-compliance of the spacing of the terrace parapet

balusters and railings, and non-compliance of the installation of the PTAC units, exterior walls

window glazing and roof terrace insulation with the 2002 New York State Energy Code.

31. The Offering Plan states that "The walls, facings, detailing, lintels, sills and back-

ups are generally in good condition." In fact, there are numerous areas where the masonry is

845049v9 012849.0101 10

cracked, the terracotta detailing is cracked and spalled, the lintels are severely rusted and

deformed, and the sills are cracked, as reflected in the relevant Local Law 11 report

32. The Offering Plan states that "In some areas the brickwork has been re-pointed,

and cracked and damaged bricks have been replaced. All brick and terra-cotta surfaces will be

cleaned." In fact, although it appears that some work was done . at the façades, the methods

appear to be improper and the workmanship appears to be below industry standards. The

masonry doesn’t appear to have been cleaned. . .

33. The Offering Plan states that "Spalled areas of the terra-cotta trim will be patched

and coated with masonry paint." In fact, there are areas where the terra-cotta is spalled and un-

painted, and there are a number of areas where terra cotta is cracked and displaced.

34. The Offering Plan states that "All open and deteriorated joints in the terra-cotta

and limestone will be grouted and/or caulked." in fact, there are numerous parapets, cornices

and water-tables where the terracotta joints are deteriorated, the mortar joints were covered over

with sealant, which has been trapping water within the joint, and has been contributing to further

deterioration of the terracotta units, cracked units were repaired with sealant, which is now

peeling off and exposing the cracks to more deterioration, and the displaced units were not

pinned and constitute unsafe conditions.

35. The Offering Plan states that "All lintels will be cleaned and painted." In fact, in

numerous instances the steel lintels are not painted and are in varying stages of rusting and

deformation.

36. The Offering Plan states that "The repair work specified in relation to the open

and deteriorated joints in the terra-cotta will cure the defects and last for many years." In fact,

the repairs that were done, mostly sealant joint application at the mortar joints and cracks, did not

8450490 012849.0101 11

cure the defects, while instead contributing to further deterioration of the terra-cotta units and

supporting steel structure, as a result of the sealant acting as a plug and retaining the moisture

and water within thewall.

37. The Offering Plan states that "As the ornamentation appears to be in good

condition, with minor exceptions, it will be left untouched except for pointing caulking, surface

treatment (paint) and correction of discovered cracks or other discovered defects." In fact, the

original terracotta and limestone ornamentation are deteriorated, and the repairs performed do

not qualify as long term repairs.

38. The Offering Plan states that "Local Law 11 report will be due in five year cycles.

The next cycle should be in 2006. The Sponsor is currently performing all of the necessary work

set forth in the Local Law 11 report, dated September 30, 2002, with respect to the Building and

will complete the work prior to closing." In fact, the Fifth and Sixth Cycle Local Law 11 reports

included several "Unsafe" items and several "SWARMP" or Precautionary items, and there are

many items from the Fifth and Sixth Cycle reports that were not addressed.

39. The Offering Plan states that "All existing copings are in good condition." In

fact, several precast copings are deteriorated, and the coping joints are open.

40. The Offering Plan states that "The crack and leak - in the basement wall - will be

remedied by means of internally applied waterproofing of the type normally used for structures

below the water table". In fact, there was no waterproofing installed at the basement wall, and

the cracks were not addressed.

41. The Offering Plan states that "Structural system: Conditions that require

corrective work will be repaired". In fact, voids in the back-up masonry were observed..

845049v9 012849.0101 12

42. The Offering Plan states that "Where existing fireproofing of steel members is

disturbed or removed during the alteration, new fireproofing of gypsum board and/or spray on

materials and/or intumescent paint conforming to code will be installed". In fact, some of the

members which were exposed through interior renovations are missing fireproofing.

43. The Offering Plan states: "Doors and Windows: A few new openings will be cut

into the exterior wall for new windows". In fact, new openings were made and windows

.installed, however the new window lintels do not have adequate support and are not adequately.

waterproofed.

44. The Offering Plan states: "Exterior windows, on the north facade.. .will all be

replaced with new casement or fixed units, and shall be of aluminum construction with bronze

anodized or baked enamel paint finish (color to be selected by Architect) and glazed with

factory-assembled 1" insulating glass units rated "CBA" by the insulating Glass Certification

Council." In fact, the glass units are less than 1 inch thick.

45. The Offering Plan states: "The system is designed to meet the requirements of the

New York State Energy Code May 2002." In fact, it does not

46. Indeed, it appears that many of the repair items described in the Offering Plan

were either not performed or performed below industry standards.

47. In or about the Spring of 2010 when several shareholders of Plaintiff began to

perform alterations in their Units, Plaintiff became aware that various items that were

represented in the Offering Plan with respect to construction, which were concealed behind wails

and other enclosures, were not properly performed.

48. The tenant-shareholder alterations, consisting of, inter alia, demolition of the

interior finishes, exposed conditions, including the lack of appropriate insulation and sealing

845049v9 012849.0101 13

around the PTAC units, as well as inadequate insulation and inappropriate tiller in the space

between the interior finish and the exterior walls.

49. The discovery of these previously concealed conditions caused Plaintiff to ask

Israel Berger & Associates, LLC Building Envelope Consultants ("IBA"), to assess interior

finishes of exterior walls, PTAC installation, as well as other previously concealed conditions.

50. IBA prepared several reports setting forth the results of its inspection of the

Building C’IBA Reports"). These IBA Reports describe conditions of the Building, and set forth

numerous deficiencies that were exposed as a result of the demolition of the interior finish,

including the following:

(a) Waterproofing installed at the window steel lintels does not have a substrate for it to be adhered to, without which the waterproofing membrane is not secured, which does not provide a water tight condition..

(b) Window steel lintels only have one steel hanger support; which is not adequate for its span.

(c) Terrace doors do not have a sill pan underneath the door saddle.

(d) The masonry backup has voids or sections missing, which could compromise the structural integrity of the exterior wall.

(e) Some of the structural steel does not have fireproofing.

(f) Improper installation of windows and exterior doors.

(g) Failure to properly insulate sprinkler pipes located near exterior portions of the Building.

51. In addition IBA reviewed the PTAC units installed in various floors of the

Building, which revealed that:

(a) PTAC unit sleeves are not properly sealed at the exterior wall penetrations.

(b) Unit sleeve extensions are not sealed to the original sleeves.

(c) Punched holes in existing sleeves and extension sleeves are not sealed.

845049v9 012849.0101 14

(d) Piping penetrations from the wall cavity through the interior layers of sheetrock are not sealed.

(e) Some unit air devices are installed facing the exterior wall in lieu of the interior space creating short cycling which inhibits the dehumidification of the space.

(t) The reduced airflow, at units with decorative enclosures due to added restriction and/or lack of ducted extension collar is likely to result in short cycling of the unit which would contribute to elevated space relative humidity and reduced surface temperatures adjacent to the units.

(g) Units may be oversized for the application which results in shorter run times for the unit which inhibits the dehumidification of the space.

52. IBA reviewed the installation of the AC equipment for the Lobby, and identified

that the AC unit chassis had been compromised. Air leakage at the unit chassis was observed.

53. IBA reviewed piping installed within Lobby AC equipment room and identified

that CPVC plastic piping was installed within the AC equipment room for use as air conditioning.

condensate drainage. According to Section P102.2(b) of reference standard RS-16 of the

applicable New York City Building Code at the time the work was performed at the Building,

"Plastic piping and fittings may be used only in residential buildings of three stories or less in

height,..."

54. IBA reviewed piping installed in exposed sections of the basement and identified

that CPVC plastic piping was installed as well as standard grade PVC plastic piping. As

indicated above, at the time the work was performed at the Building applicable sections of the

New York City Building Code prohibit the use of plastic piping within buildings greater than

three stories.

55. IBA also inspected the water infiltration in the 27th Floor unit, PH 1, and

conducted water tests, with the following results:

(a) On the west side, a source of leakage was found coming from the masonry at the roof flashing on the inboard face of the parapet, below the railing. A

845049v9 012849.0101 15

masonry probe was opened at the area of leakage, and it was found that the roof flashing of the new parapet is not a thru-wall Hashing.

(b) On the east side open masonry was observed under the door sill. There is no waterproofing under the door sill, and no sealant.

56. Although the Sponsor expressly represented in the Offering Plan that it would, at

its sole cost and with reasonable diligence, complete the construction of the Building

substantially in accordance with the Plans and Specifications, and with a quality of construction.

comparable to currently prevailing standards, as demonstrated above the actual conditions of the

Building deviates substantially from that contractual obligation.

57. Although the Sponsor expressly represented in the Offering Plan that the

Architects’ ’Report accurately stated the intended conditions of the Building upon completion of

construction, as demonstrated above the actual conditions of the Buildings’ deviate substantially

from the Architect’s Report.

58. The condition of the Building, as it was supposed to be delivered, as described in

the Offering Plan, deviates substantially from the actual conditions of the Building following

construction.

59. The representations, covenants and warranties in the Offering Plan were material

and binding.

60. The Sponsor is aware of and has ignored and failed to correct the numerous

defective and hazardous conditions in the Building and to deliver the Building as described in the

Offering Plan.

61. The Sponsor has also ignored the conditions specified in the IBA Reports, despite

its having been furnished copies and having been given the opportunity to inspect conditions at

the Building.

845049v9 012849.0101 16

62. Beginning in or about the spring and summer of 2007, Plaintiff received

complaints from the owners of shares allocated to the Residential Units ("Residential Unit

Owners") regarding the operation of the HVAC system and PTAC units located within the

Residential Units of the Building.

63. In response to Plaintiff’s, request to address these concerns, Sponsor retained an

expert consultant for the purpose of inspecting and making recommendations for correcting the

cause of the problems with the PTACunits and the HVAC system.

64. A report was prepared by Sponsor’s consultant setting forth the remedial work

that it determined was required to be done.

65. Upon information and belief, Sponsor and/or Magen retained Epic to perform

corrective work related to problems with the installation, insulation and operation of the 1-IVAC

system and PTAC units at the Building.

66. Following the purported repairs, in or about Spring 2008, Sponsor represented to

Plaintiff that the work relating to the HVAC system and PTAC units that its consultant

recommended be done, had been performed.

67. That representation was false.

68. In addition to the misrepresentation regarding the alleged correction of the

conditions, Sponsor, Magen and/or Epic also concealed conditions that were revealed when work

was performed on the HVAC system and PTAC units. Those conditions, which were concealed

behind walls and other enclosures following the Sponsor’s original construction work at the

Building, were necessarily observed by Defendants during the alleged remedial work, and were

thereafter concealed once again when the remedial work was purportedly completed.

845049v9 012849.0101 17

69. These concealed conditions included improper sealing of the PTAC unit sleeves

at the exterior wall penetrations, failure to seal Unit sleeve extensions to the original sleeves,

lack of sealing of punched holes in existing sleeves and extension sleeves, lack of sealing of the

joints between the exterior wall and window openings, lack of insulating heating piping at PTAC

units, lack of providing ducted extension collar from PTAC unit air outlet to decorative

enclosure air outlet, lack of insulating ducted extension collar, lack of sealing of piping

penetrations from the wall cavity through the interior , layers of sheetrock and the improper

construction of the interior finish of the exterior walls.

70. Inspections of the Building are continuing and it is anticipated that additional

conditions will be revealed,.resulting in continuing additional costs and damages to Plaintiff.

AS AND FOR A FIRST CAUSE OF ACTION AGAINST SPONSOR

71. Plaintiff repeats and re-alleges each and every allegation contained in Paragraphs

1 through 70 of this Complaint with the same force and effect as if fully set forth herein.

72. The Offering Plan constitutes a binding contract between Sponsor and Plaintiff

Apartment Corporation.

73. Each Residential Unit Owner entered into a Purchase Agreement with the

Sponsor and purchased the shares allocated to one or more Units in the Building pursuant to the

Plan.

74. The Purchase Agreement provided, among other things, that the Offering Plan

was part thereof, and Sponsor agreed within each and every Purchase Agreement to abide by and

be bound by the terms and conditions of the Plan.

75. The Sponsor represented, inter alia, that it would complete the construction of the

Building in accordance with the Plans and Specifications described in the Offering Plan, and

with a quality of construction comparable to currently prevailing standards.

845049v9 012849.0101 18

76. Pursuant to the Plan, the Sponsor represented that the Architect’s Report

accurately stated the condition of the. Building and, therefore, it was free of substantial defects

and not in violation of the New York City Building Code or any other applicable statutes, rules,

ordinances or regulations.

77. The Building that was delivered to the Plaintiff was not the Building that Sponsor

represented in the Offering Plan would be delivered to Plaintiff, and was not of a quality

comparable to the applicable prevailing building construction standards. . ... . ..

78. Defendant Sponsor breached its contractual obligations under the Offering Plan

and Purchase Agreements by failing to construct and deliver to Plaintiff and the Residential Unit

Owners a Building as represented in the Plan.

79. By reason thereof, Plaintiff has been damaged in the sum of at least four million

($4,000,000) dollars, the exact amount to be determined at trial.

AS AND FOR A SECOND CAUSE OF ACTION AGAINST SPONSOR


I through 79 of this Complaint with the same force and effect as if fully set forth herein.

81. As applicable here, all agreements for the sale of newly constructed homes,

including cooperatives, contain an implied housing warranty under the common law that the

construction of the building be performed in a skillful and workmanlike manner and that the

Building and Units have no material design and construction defects.

82. Defendant Sponsor breached the implied housing warranty owed to Plaintiff by

causing the construction deficiencies as more fully set forth above.

83. By reason thereof, the Plaintiff has been damaged in the sum of at least four

million ($4,000,000) dollars, the exact amount to be determined at trial.

845049v9 012349.0101 19

AS AND FOR A THIRD CAUSE OF ACTIONAGAINST SPONSOR


1 through 83 of this Complaint with the same force and effect as if fully set forth herein.

85. Sponsor has a duty of care to the Plaintiff to cause and ensure that the Building

and the Residential Units were designed, constructed and completed in a competent and

workmanlike manner, in accordance with proper design, engineering and construction practices,

and in accordance with the Building Plans and Specifications, using all due care.

86. Sponsor failed to discharge and perform its duties to the Plaintiff and, as a result

of its negligence, the Building was improperly and inadequately constructed and completed in an

incompetent and unworkmanlike manner, with material design and construction, deficiencies,

substantially below applicable standards for cooperatives in Manhattan, and contrary to and in

gross disregard for, the Offering Plan and Building Plans and Specifications, all as more

particularly alleged and described above.’

87. By reason thereof, the Plaintiff has damaged in the sum of at least four million

($4,000,000) dollars, the exact amount to be determined at trial.

AS AND FOR A FOURTH CAUSE OF ACTION AGAINST SPONSOR



89. By virtue of Sponsor’s contractual relationship with Plaintiff, Sponsor had a duty

to Plaintiff and the Residential Unit Owners to perform and fulfill its obligations to them and to

accurately represent to Plaintiff the condition of the Building and the remedial work being

performed in the Building.

90. Sponsor violated that duty to Plaintiff by negligently misrepresenting the facts to

Plaintiff and the Residential Unit Owners when it told them that the remedial work with respect

845049v9 012849.0101 20

to the HVAC system and the PTAC units that was supposed to have been perfonned .by Magen

and Epic was performed and that the defective conditions relating to the HVAC system and

PTAC units were corrected, when in fact the work was not performed and the defective

conditions were not corrected.

91..... Sponsor also violated that duty to Plaintiff by concealing and. failing to disclose to

Plaintiff the additional, numerous defective conditions that were revealed during the remedial

work in areas behind the interior finish of the exterior walls but were-again - covered up following

the work that was purportedly performed by Magen and Epic.

92. Sponsor purported to fulfill, its obligations as Sponsor to perform the repairs to the

Building and to correct the conditions throughout the Building with respect to the HVAC system

and the PTAC units.

93. Plaintiff justifiably relied upon Sponsor’s purported acceptance and performance

of those obligations and upon Sponsor’s representations that the repairs were done, and in

reliance upon those representations took no steps to perform any further Building-wide repairs or

investigation into the HVAC system and PTAC units.

94. Had Plaintiff known that the representations were false, and had Plaintiff known

the true condition of the Building following the purported repairs to the HVAC system and the

PTAC units, it could have taken steps to investigate further the conditions of the Building

relating to the installation, insulation and operation of the HVAC system and PTAC units and to

perform or cause Sponsor to perform further Building-wide repairs.

95. Sponsor’s representations and omissions were made negligently, recklessly or

carelessly.

845049v9 012849.0101 21

96. Sponsor knew or should have known that Plaintiff would rely upon these

misrepresentations and omissions concerning the conditions of the Building.

97. As result of Sponsor’s misrepresentations and omissions, Plaintiff has incurred

expenses consisting of, inter alia, increased energy and electrical consumption in the Building,

the cost of retention of consultants, and experts and the costs of repairs.

98. By reason thereof, the. Plaintiff has been damaged in the sum of at least three

million ($3,000,000) dollars, the exact amount to be determined at trial. .. . .

AS AND FOR A FIFTH CAUSE OF ACTION AGAINST EPIC


I through 98 of this Complaint with the same force and effect. as if fully set forth herein.

100. As the mechanical contractor retained to perform repairs on the HVAC system

and PTAC units at the Building after the summer of 2007, Epic owed a duty of care to the

Plaintiff and the Residential Unit Owners to cause and ensure that the remedial work at the

Building was performed, and that it was performed in a competent and workmanlike manner, in

accordance with the recommendations made for remedying the conditions at the Building.

101. Epic failed to discharge and perform its duty to the Plaintiff and, as a result of its

negligence, the repairs to the HVAC system and the PTAC units were not performed and/or were

defectively and inadequately performed, to the detriment of the Plaintiff and the Residential Unit

Owners.

102. By reason thereof, the Plaintiff has been damaged in the sum of at least three


845049v9 012849.0101 22

AS AND FOR A SIXTH CAUSE OF ACTION AGAINST MAGEN



104. As the general contractor retained to perform repairs on the HVAC system and

PTAC units at the Building after the summer of 2007, Magen owed duty of care to the Plaintiff

and the Residential Unit Owners to cause and ensure that the remedial work at the Building was

performed, and that it was performed in a competent and workmanlike manner, in accordance

with the recommendations made for remedying the conditions at the Building.

105. Magen failed to discharge and perform its duty to the Plaintiff and, as a result of

its negligence, the repairs to the HVAC system and the PTAC units were not performed and/or

were defectively and inadequately performed, to the detriment of the Plaintiff and the Residential

Unit Owners.

106.. By reason thereof, the Plaintiff has been damaged in the sum of at least three


WHEREFORE, Plaintiff demands judgment as follows:

A. On the first cause of action, in an amount to be determined at trial, but in no event

less than $4,000,000;

B. On the second cause of action, in an amount to be determined at trial, but in no

event less than $4,000,000;

C. On the third cause of action, in an amount to be determined at trial, but in no


D On the fourth cause of action, in an amount to be determined at trial, but in no


845049v9 012849.0101 23

E. On the fifth cause of action, in an amount to be determined at trial, but in no event

less than $3,000,000;

F. Oa the sixth cause of action, in an amount to be determined at trial, but in no


together with attorneys’ fees and applicable interest, the costs and disbursements of this action,

and for such other and further relief as is just and proper.

Dated: New York, New York February 7, 2011

Yours, etc.

MOSES & SI Attorneys for

By: ’-" 77 /(/W [) Jay R. IaIkoff, Esq. Ruth (Y Haber, Esq.

The Chrysler Building 405 Lexington Avenue New York, New York 10174 Tel: (212) 554-7800 Fax: (212) 554-7700

TO: HA1N1JM FERETIC PRENDERGAST & MERLINO, LLC Attorneys for Defendant J.T. Magen & Co. Inc. 55 Broadway, Suite 202 New York, New York 10006 Tel: (212) 530-3900

MARSHALL, DENNEHEY, WARNER, COLEMAN & G000IN Attorneys for Defendant 112 Central Park South, LLC 425 Eagle Rock Avenue - Suite 302 Roseland, NJ 07068 Tel: (973) 618-4102

845049v9 012849.0101 24

00 6

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EXHIBIT B

A REGIONAL DEFENSE LITIGATION LAW FIRM

PWN,TLVANL DIL&WUZ Æem W I MAEsIWi, WARNER, COLEMAN Goxi Daawn

� Owo A PRoFESSIoNAL CORPORATION WWW.nlarshalldennehcy.cOm

Pittsburgh - Jssbiuuvffle 425 Eagle Rock Avenue, Suite 302 Roseland, NJ 07068 WilIlamipoit osisoito

(973) 618-4100 Fax (973) 618-0685 Joseph A. Manning, Resident Managing Attorney cherHa NEWYR

Direct Dial: (973) 618-4146 Email: [email protected]

February 25, 2011

Via First Class Mail

Clerk, County of New York Supreme Court of the State of New York 60 Centre Street New York City, NY 10007-1474

RE: 110 Cental Park South Corporation Supreme Court of the State of New York, County of New York Index No. 652098110 Our File No. 13016.00195-SLP

Dear Sir or Madam:

We represent defendant, 112 Central Park South, LLC ("CPS"), in connection with the above-referenced matter. Enclosed please find an original and one copy of CPS’s Answer to Plaintiffs Complaint. Please file the original document and return to us a filed stamped copy in the envelope provided.

Thank you.

Very truly yours,

446 ";a PAULiNE F. TUTELO

PFT:rap Enclosure

cc: Jay R. Fialkoff, Esq. w/enc.

11/1221302A


110 CENTRAL PARK SOUTH CORPORATION, I Index No.: 652098/10

Plaintiff,

V. I ANSWER

112 CENTRAL PARK SOUTH, LLC, J.T. MAGEN & COMPANY, 1NC.’ and EPIC MECHANICAL CONTRACTORS, LLC,

Defendants.

Defendant, 112 Central Park South, LLC, ("112 CPS"), by its attorneys, Marshall, Dennehey, Warner,

Coleman & Goggin, 425 Eagle Rock Avenue, Suite 302, Roseland, New Jersey 07068, for its answer to

plaintiffs complaint, states upon information and belief herein:

THE PARTIES

1. 112 CPS has insufficient knowledge on which to form a belief as to the truth of the allegations

contained in paragraphs 1,4, 5, and 6, and leave plaintiff to its proofs.

2. 112 CPS admits the allegations contained in paragraphs 2, 3, and 7.

FACTUAL BACKGROUND


contained in paragraphs 8, 9, 10, 12, 14, and 16, and leave plaintiff to its proofs.

4. 112 CPS admits to the allegations in paragraph 11 to the extent that Magen was retained as the

general contractor on the project. 112 CPS has insufficient knowledge on which to forma belief

as to the truth of the balance of the allegations contained in the above paragraph and leaves

plaintiff to its proofs.

5. 112 CPS admits the allegations contained in paragraph 15.

6. No response is required of 112 CPS to paragraph 13 as the contents of this document speaks for

itself.

OFFERING PLAN

7. No response is required of 112 CPS to paragraphs 17, 18, 19, 20, 21, 22, 23, and 25, as the terms

of these documents speak for themselves.


contained in paragraph 24, and leaves plaintiff to its proofs.

ACTUAL CONDITIONS EXISTING AFTER CONSTRUCTION

9. 112 CPS denies the allegations in paragraphs 26, 27, 28, 29, 30, 48, 49, 52, 58, 68, 69, and 70, to

the extent that the allegations, there in refer to 112 CPS and its involvement in the project. 112

CPS has insufficient knowledge on which to form a belief as to the truth of the balance of the

allegations contained in the above paragraphs as they pertain to parties other than 112 CPS, and

leaves plaintiff to its proofs.

10. 112 CPS denies the allegations in paragraphs 31, 32, 33, 34, 35, 36, 37, 38, 39,40, 41, 42, 43, 44 5

45, 46, and 47 to the extent that the allegations there in refer to 112 CPS and its involvement in the

project. 112 CPS has insufficient knowledge on which to form a belief as to the truth of the

balance of the allegations contained in the above paragraphs as they pertain to parties other than

112 CPS, reference documents whose contents speak for themselves, and leaves plaintiff to its

proofs.


contained in paragraphs 48, 50, 51, 53, 54, 55, 62, and 70, and leave plaintiff to its proofs.

12. 112 CPS admits .the allegations contained in paragraph 63 to the extent that it retained Lazio

Bodak Engineers, P.C., to act as a consultant on the PTACIHVAC issues. 112 CPS has

insufficient knowledge on which to form a belief as to the truth of the balance of the allegations


13. 112 CPS admits the allegations contained in paragraph 64 to the extent that it retained Lazlo

Bodak Engineers, P.C., prepared a letter of recommendation relating to repairs to the

PTAC/HVAC units. 112 CPS has insufficient knowledge on which to form a belief as to the truth

of the balance of the allegations contained in paragraph 64, and leaves plaintiff to its proofs.

14. 112 CPS admits the allegations contained in paragraph 65 to the extent that Magen and Epic were

called to return to the building to perform remedial/repair work. 112 CPS has insufficient

knowledge on which to form a belief as to the truth of the balance of the allegations contained in

paragraph 65, and leaves plaintiff to its proofs.

15. 112 CPS denies the allegations contained in paragraphs 56, 57, 60, 61, 66, and 67.

16.No response is required of 112 CPS as to paragraph 59 as it calls for a legal conclusion.

AS AND FOR A FIRST CAUSE OF ACTION AGAINST THE SPONSOR

17. 112 CPS repeats and reasserts its responses to each in every allegation contained in paragraphs 1

through 70 of this Complaint as if set forth specifically herein.

18.No response is required of 112 CPS to paragraph 72 as this calls for a legal conclusion.



20. No response is required of 112 CPS to paragraphs 74, 75, and 76 asthe contents of the documents

referenced therein speak for themselves. However, to the extent that the allegations therein refer to

112 CPS and its involvement in the project, 112 CPS denies these allegations, and leaves

to its proofs.

21. 112 CPS denies the allegations set forth in paragraphs 77, 78, and 79.

AS AND FOR A SECOND CAUSE OF ACTION AGAINST THE SPONSOR



23.No response is required of 112 CPS to paragraph 81 as this paragraph calls for a legal conclusions.

However, to the extent that the allegations therein refer to 112 CPS and its involvement in the

project, 112 CPS denies these allegations, and leaves plaintiff to its proofs.

24. 112 CPS denies the allegations set forth in paragraphs 82, and 83.

AS AND FOR THE TIIIRI) CAUSE OF ACTION AGAINST THE SPONSOR

25. 112 CPS repeats and reasserts its responses to each in every allegation contained in paragraphs I






AS AND FOR THE FOURTH CAUSE OF ACTION AGAINST THE SPONSOR






30. 112 CPS denies the allegations set forth in paragraphs 90, 91, 92, 95, 96, 97, and 98.

31. 112 CPS denies the allegations in paragraphs 93, and 94 to the extent that the allegations there in

refer to 112 CPS and its involvement in the project. 112 CPS has insufficient knowledge on

which to form a belief as to the truth of the balance of the allegations contained in the above

paragraphs as they pertain to parties other than 112 CPS, reference documents whose contents

speak for themselves, and leaves plaintiff to its proofs.

AS AND FOR THE FIFTH CAUSE OF ACTION AGAINST EPIC



33. The allegations contained in paragraphs 100 through 102 do not pertain to 112 CPS. However, to

the extent that the allegations therein refer to 112 CPS and its involvement in the project, 1.12 CPS

denies these allegations, and leaves plaintiff to its proofs.

AS AND FOR THE SIXTH CAUSE OF ACTION AGAINST MAGEN




the extent that the allegations therein refer to 112 CPS and its involvement in the project, 112 CPS


AS AND FOR THE FIRST AFFIRMATIVE DEFENSE

Plaintiff’s complaint falls to state a cause of action against 112 CPS upon which relief can be

granted.

AS AND FOR A SECOND AFFIRMATIVE DEFENSE

Plaintiff may not maintain the complaint as to 112 CPS because, to the extent, if any, that

sustained any injuries and/or damages, any such injuries and or damages were not caused by 112 CPS but

were caused by the negligence, carelessness, recklessness, and/or intentional acts of third persons over

whom 112 CPS had no control.

AS AND FOR A THIRD AFFIRMATIVE DEFENSE

That all risks and dangers connected with the situation at the time and place mentioned in

plaintiffs complaint were open, obvious and apparent and were known to and assumed by the plaintiff.

AS AND FOR A FOURTH AFFIRMATIVE DEFENSE

Any injuries and/or damages sustained by the plaintiff as alleged in plaintiffs complaint were

caused in whole or in part by the contributory negligence and/or the culpable conduct of plaintiff and not

as a result of any contributory negligence and/or culpable conduct on the part of 112 CPS.

AS AND FOR A FIFTH AFFIRMATIVE DEFENSE

If plaintiff sustained damages in the manner alleged, all of which have been denied by 112 CPS,

and if the assessed liability of 112 CPS is 50 percent or less of the total liability assigned to all persons

liable, then the liability of 112 CPS to plaintiff for non-economic loss shall not exceed its equitable share

determined in accordance with the relative culpability of each person causing or contributing to the total

liability for non-economic loss.

AS AND FOR A SIXTH AFFIRMATIVE DEFENSE

In the event that any person or entity liable, or claimed to be liable, for the injuries alleged in this

action, has been given, or may hereafter be given, a release or covenant not to sue, 112 CPS will be

entitled to protection under General Obligation Law 15-108 and the corresponding reduction of any

damages which may be determined to be due against 112 CPS.

- AS AND FOR AN SEVENTH AFFIRMATIVE DEFENSE

Plaintiffs complaint is barred by applicable Statute of Limitations and/or repose.

AS AND FOR A EIGHTH AFFIRMATIVE DEFENSE

No act or conduct by 112 CPS or any agent, servant or employee caused any alleged injury,

damages or loss to plaintiff.

AS AND FOR A NINETH AFFIRMATIVE DEFENSE

Any claim against 112 CPS is or may be barred by waiver, payment or release.

AS AND FOR A TENTH AFFIRMATIVE DEFENSE

The sole, proximate cause of any alleged injury, damage or loss allegedly sustained by

was the acts and conduct and the, negligence, carelessness, breaches of contract, warranties, duties or

obligations by persons or parties other than 112 CPS or their agents, servants, workmen or employees.

AS AND FOR A ELEVENTH AFFIRMATIVE DEFENSE

112 CPS did not make or breach any alleged warranties.

AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE.

Any claim against 112 CPS for alleged breach of warranty is barred by failure to give proper

adequate notice thereof as required by the applicable laws, including the Uniform Commercial Code, the

existence and issuance of any warranties by 112 CPS or any breach of any alleged warranties by the 112

CPS in the instant case being expressly herein denied.

AS AND FOR A TIIIRTEENTH AFFIRMATIVE DEFENSE

Pursuant to CPLR §4545(c), any award to the plaintiff for economic loss shall be reduced by the

amount of the economic loss received by collateral sources.

AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE

Plaintiff failed to mitigate or otherwise act to lessen or reduce the injuries and disability alleged in

the complaint herein.

AS AND FOR A FIRST CROSS-CLAIM AGAINST J.T. MAGEN & COMPANY, INC. AND

EPIC MECHANICAL CONTRACTORS, LLC

1. 112 CPS entered into a contract with J.T. Magen & Company, Inc. ("Magen"), to act as the

General Contractor for the initial construction of the 110 Central Park South project.

2. Upon information and belief, Magen entered into a contract with Epic Mechanical Contractors,

LLC ("Epic"), to act as the mechanical contractor for the initial construction of - the 110 Central

Park South project.

3. Although 112 CPS denies any liability whatsoever on its part, it nonetheless asserts that any and

all injuries and damages sustained by the plaintiff were the proximate result of the negligence,

wrongdoing, and/or defective workmanship and products and materials provided by Magen and

Epic.

4. 112 CPS demands contribution from Magen and Epic pursuant to CPLR 1401.

AS AND FOR THE SECOND CROSS-CLAIM AGAINST MAGEN AND EPIC

5. Although the 112 CPS denies any liability whatsoever on its part, if judgment is recovered by the

plaintiff against 112 CPS, it is hereby asserted that its negligence, if any, was not morally

culpable, but was merely constructive, technical, imputed or vicarious, and that plaintiffs

damages arose through the direct and primary negligence of Magen and Epic, if any.

6. Magen and. Epic are obligated by operation of law and contract and otherwise to defend and

indemnify 112 CPS, and hold 112 CPS harmless from any and all claims which are the subject

this lawsuit.

AS AND FOR THE THIRD CROSS-CLAIM AGAINST MAGEN

7. Magen expressly warranted to 112 CPS that all materials and equipment furnished in connection

with the construction of the 110 Central Park South project and all work performed would be of

good quality, free of faults and defects, and in conformance with the contract documents.

8. If the allegations of the plaintiffs are proven to be true, then Magen has breached its express

warranties with regard to its work and materials.

9. 112 CPS has been and will be damaged by such breaches in that it has been and will be exposed

to significant liability to plaintiff and has incurred substantial costs and counsel fees.

AS AND FOR THE FOURTH CROSS-CLAIM AGAINST MAGEN

10.Magen represented to 112 CPS that it they possessed the skill, experience, training and expertise

to perform the work in accordance with the care and skill customary in the construction industry,

and that, if selected by 112 CPS, it would, in fact, use such care and skill in performing their

work on the 110 Central Park South project.


to significant liability to plaintiff and have incurred substantial costs and counsel fees.

12.Magen also impliedly warranted to 112 CPS that its work would be of good quality, free of

defects, in conformity with contract documents, safe, and fit for the intended purposes of the 112

Central Park South project.

13.If the allegations of the plaintiff are proven, then defendant Magen has breached their implied

warranties.



AS AND FOR THE FLFH CROSS-CLAIM AGAINST MAGEN AND EPIC

15.Pursuant to the express terms of the contract between 112 CPS and Magen, Magen expressly

agreed to procure insurance naming 112 CPS as an additional insured and providing 112 CPS

with primary insurance coverage for the damages alleged by plaintiff.

16. 112 CPS is entitled to damages from Magen for any sums for which it may be adjudged liable to

the plaintiff that is otherwise not covered by its own insurance as a result of Magen’s express

contractual insurance provision obligation.

AS AND FOR THE SIXTH CROSS-CLAIM AGAINST MAGEN


agreed to indemnify 112 CPS and hold it harmless and its agents and employees from and

against all claims, damages, losses and expenses, including but not limited to attorney’s fees,

arising out of or resulting from the performance of their work and caused in whole or in part by

any negligent act or omission by the co-defendant or by anyone directly or indirectly employed

by them.

18. 112 CPS is entitled to contractual indemnification from Mägen for any sums for which it may be

adjudged liable to the plaintiff.

AS AND FOR THE SIXTH CROSS-CLAW AGAINST MAGEN AND EPIC

19.Pursuant to the express terms of the contracts between 112 CPS and Magen, Magen agreed to

duties, and perform certain tasks in a certain manner in connection with the construction of the

premises.

20. Magen has breached its various duties and agreements to 112 CPS.

21. As a result of these breaches, 112 CPS has been and will be damaged in that it has been and will

be exposed to significant liability to plaintiff and have incurred substantial costs and counsel

fees.

WHEREFORE, defendant 112 CPS, demands judgment dismissing the complaint in its entirety,

together with cost and disbursements, and attorneys fees of this action, or in the alternative, in the event

that plaintiff recovers any verdict/judgment against 112 CPS, 112 CPS also demands judgment over and

against Magen and Epic, in whole or in part, in accordance with the cross-claims herein above set forth,

together with costs, disbursements and attorneys fees in the defense of this action or any other or further

relief that the court deems just and proper.

DATED: Roseland, New Jersey February 24, 2011

MARSHALL, DENNEHEY, WARNER, COLEMAN & 000GIN Attorneys for Defendant, 112 Central Park South LLC

25 Eagle ftck Avenue - Suite 302 Roseland, NI 07068

(973) 618-4146


I hereby certify that I caused the within answer to the third-party complaint to be filed with the

Clerk of the Supreme Court, County of New York, and the following counsel via first class mail:

I declare under penalty of perjury that the foregoing is true and correct.

Dated: February 23, 2011

11/1216949.0


110 CENTRAL PARK SOUTH CORPORATION, INDEX NO.: 65298/2010

Plaintiff

- against - Civil Action

112 CENTRAL PARK SOUTH, LLC, J.T. MAGEN & COMPANY, INC., AND EPIC MECHANICAL CONTRACTORS, LLC,,

Defendants

DEFENDANT, 112 CENTRAL PARK SOUTH, LLC’S ANSWER TO PLAINTIFF’S COMPLAINT

MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN Attorneys for Defendants

425 Eagle Rock Avenue, Suite 302, Roseland, New Jersey 07068, (973) 618-4100

Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney admitted to practice in the courts of New York State, certfles that, upon information and belief and reasonable inquiry, the contentions contained in the annexed document are not frivolous.

Dated: Signature

Print Signer’s Name: Pauline F. Tutelo

Service of a copy of the within is hereby admitted. Date:

Attorney(s) for

EXHIBIT C

Our File No.: 1301600195-SLP 11/1246776. vi



Plaintiff,

V .


Defendants, 112 CENTRAL PARK SOUTH, LLC,

Third-Party Index No.: Third-Party Plaintiff,

V.

COSTAS KONDYLIS & PARTNERS, LLC, SUMMONS GOLDSTEiN ASSOCIATES, PLLC, I.M. ROBBINS, PC, LASZLO BODAK ENGINEER, PC, CONVENTIONAL STONE & MARBLE CORP., ROSLYN ENGINEERING ASSOCIATES, PC, INDUSTRIAL WINDOW CORP., DKS CONTRACTORS,INC. d/b/a DKS CONSTRUCTION, GACE CONSULTING ENGINEERS, PC, and INNOVATIVE CARPENTRY,

Defendants.

TO: COSTAS KONDYLIS & PARTNERS, LLC do Kondylis Architecture, P.C. 115 Fifth Avenue New York, NY 10003

GOLDSTEIN ASSOCIATES, PLLC 31 West 27’ Street New York, NY 10001

I.M. ROBBINS, PC 15 West 44’ Street New York, NY 10036

LASZLO BODAK ENGINEER, PC 45 West 36 " St., 3rd Floor New York, NY 10018

CONVENTIONAL STONE & MARBLE CORP. 244 Mineola Blvd., Ste 100 Mineola, NY 11501

ROSLYN ENGINEERING ASSOCIATES, PC 140 Grandview Blvd. Yonkers, NY 10710

INDUSTRIAL WINDOW CORP. 515 North State Road Briarcliff Manor, NY 10510

DKS CONTRACTORS,INC. dlb/a DKS CONSTRUCTION 31 East 28 th Street New York, NY 10016

GACE CONSULTING ENGINEERS, PC 31 West 27’ Street, 7’ Floor New York, NY 10001

INNOVATIVE CARPENTRY 135 Logan Avenue Jersey City, NJ 07306

You are hereby summoned to answer the Verified Third Party Complaint of defendant/third-party

plaintiff, 112 CENTRAL PARK SOUTH, LLC., a copy of which is hereby served upon you and to serve

copies of your Verified Answer on the undersigned, Marshall, Dennehey, Warner, Coleman & Goggin,

P.C., attorneys for defendant/third-party plaintiff, whose address is 425 Eagle Rock Avenue, Suite 302,

Roseland, New Jersey 07068, and upon attorneys for plaintiff, Jay R. Fialkoff, Esq., Moses & Singer,

LLP, 405 Lexington Ave., New York, New York, 10174, attorneys for J.T. Magen & Co., Inc., John E.

Hannum, Esq., Hannum Feretic Prendergast & Merlino, LLC, One Exchange Plaza, 55 Broadway, Suite

202, New York, NY, 10006, and attorneys for Epic Mechanical Contractors, LLC., Bruce R. Connolly,

Esq., Raiser & Kenniff, 1517 Franklin Avenue, Suite 300, Mineola, NY, 11501, within twenty (20) days

after service of this Third Party Summons and Verified Third Party Complaint exclusive of the date of

service.

In the event of the failure to answer the annexed Verified Third Party Complaint, judgment will be

taken against you upon default for the relief demanded in the Verified Third Party Complaint.

DATED: Roseland, New Jersey May 9, 2011

MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN A ttorneys for Defendant/Third Party Plaintiff, 112 CENTRAL PARK SOUTH, LLC

By: t&NPJLLO 425 Eagle Rock Avenue - Suite 302 Roseland, NJ 07068 (973) 618-4102

cc: Jay R. Fialkoff, Esq. Moses & Singer, LLP

405 Lexington Ave. New York, New York 10174 (212) 554-7800 Attorney for Plaintiff

John E. Hannum, Esq. Hannum Feretic Prendergast & Merlino, LLC One Exchange Plaza 55 Broadway, Suite 202 New York, NY 10006 (212) 530-3900 Attorneys for Defendant, J Magen & Co., Inc.

Bruce R. Connolly, Esq. Raiser & Kermiff 1517 Franklin Avenue, Suite 300 Mineola, NY 11501 516-742-7600 Attorneys for Defendant, Epic Mechanical Contractors, LLC.

Our File No: 13016 00195-SLP 1I11246776,vI



Plaintiff,

V.




V.

COSTAS KONDYLIS & PARTNERS, LLC, GOLDSTEIN ASSOCIATES, PLLC, I.M. ROBBINS, PC, LASZLO BODAK ENGINEER, PC, CONVENTIONAL STONE & MARBLE CORP., ROSLYN ENGINEERING ASSOCIATES, PC, INDUSTRIAL WINDOW CORP., DKS CONTRACTORS,INC. d/b/a DKS CONSTRUCTION, GACE CONSULTING ENGINEERS, P.C., and INNOVATIVE CARPENTRY,

STATEMENT PURSUANT TO CPLR RULE 3401

Defendants.

PLEASE TAKE NOTICE, that in the above-entitled action, defendant/third-party plaintiff, 112

CENTRAL PARK SOUTH, LLC., herein has impleaded COSTAS KONDYLIS & PARTNERS, LLC,

GOLDSTEIN ASSOCIATES, PLLC, I.M. ROBBINS, PC, LASZLO BODAK ENGINEER, P.C.,

CONVENTIONAL STONE & MARBLE CORP., ROSLYN ENGINEERING ASSOCIATES, PC,

INDUSTRIAL WINDOW CORP., DKS CONTRACTORS, INC. d/b/a DKS CONSTRUCTION, GACE

CONSULTING ENGINEERS, P.C., and INNOVATIVE CARPENTRY, as third-party defendants, that

the caption of the action is now set forth above, and that a copy of this statement has been served upon all

parties who have appeared in this action.

Dated: Roseland, New Jersey May 9, 2011

MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN Attorneys for Defendant/Third Party Plaint iff, 112 CENTRAL PARK SOUTH, LLC

By: t ik4x4:~Xl_ Ae" S EPHEN L. PETRILLO 425 Eagle Rock Avenue - Suite 302 Roseland, NJ 07068 (973) 618-4102

TO: Jay R. Fialkoff, Esq. Moses & Singer, LLP


John E. Hannum, Esq. Hannum Feretic Prendergast & Merlino, LLC One Exchange Plaza 55 Broadway, Suite 202 New York, NY 10006 (212) 530-3900 Attorneys for Defendant, J T Magen & Co., Inc.

Bruce R. Connolly, Esq. Raiser & Kenniff 1517 Franklin Avenue, Suite 300 Mineola, NY 11501 516-742-7600 Attorneys for Defendant, Epic Mechanical Contractors, LLC

Our File No.: 1301600195-SLP I 1/1246776.vI



Plaintiff,




V. I VERIFIED THIRD-PARTY COMPLAINT

COSTAS KONDYLIS & PARTNERS, LLC, GOLDSTEIN ASSOCIATES, PLLC, I.M. ROBB[NS, PC, LASZLO BODAK ENGINEER, PC, CONVENTIONAL STONE & MARBLE CORP., ROSLYN ENGINEERING ASSOCIATES, PC, INDUSTRIAL WINDOW CORP.,DKS CONTRACTORS,INC. d/b/a DKS CONSTRUCTION, GACE CONSULTING ENGINEERS, P.C., and INNOVATIVE CARPENTRY,


112 CENTRAL PARK SOUTH, LLC, ("112 CPS") by its attorneys, Marshall, Dennehey, Warner,

Coleman & Goggin, P.C., complaining of third party defendants, COSTAS KONDYLIS & PARTNERS,

LLC, GOLDSTEIN ASSOCIATES, PLLC, I.M. ROBB1NS, PC, LASZLO BODAK ENGINEER, PC,



CONSULTING ENGINEERS, P.C., and INNOVATIVE CARPENTRY, alleges upon information and

belief as follows:

1. At all times hereinafter mentioned, defendant/third-party plaintiff, 112 CPS was and is a

limited liability corporation organized and existing under the law of the State of New York, with its

principal place of business do Anbau Enterprises, Inc., 206 Fifth Ave., New York, New York, 10010.

2. At all time hereinafter mentioned, third-party defendant, COSTAS KONDYLIS &

PARTNERS, LLP, was and still is a domestic limited liability partnership organized and existing by

virtue of and under the laws of the State of New York, with its principal place of business located at 115

Fifth Avenue, New York, New York, 10003.

3. At all times hereinafter mentioned, third-party defendant, COSTAS KONDYLIS &

PARTNERS, LLP, was and still is a foreign limited liability partnership duly authorized or licensed to

conduct business in the state of New York, with its principal place of business located at 115 Fifth

Avenue, New York, New York, 10003.

4. At all time hereinafter mentioned, third-party defendant, GOLDSTEIN ASSOCIATES,

PLLC, was and still is a domestic professional limited liability company/corporation organized and

existing by virtue of and under the laws of the State of New York, with its principal place of business

located at 31 West 27" Street, New York, New York, 10018.

5. At all times hereinafter mentioned, third-party defendant, GOLDSTEIN ASSOCIATES,

PLLC, was and still is a foreign professional limited liability company/corporation duly authorized or

licensed to conduct business in the state of New York, with its principal place of business located at 21

West 27 th Street, New York, New York, 10018.

6. At all time hereinafter mentioned, third-party defendant, I.M ROBBINS, PC, was and still 1

is a domestic professional corporation organized and existing by virtue of and under the laws of the State

of New York, with its principal place of business located at 15 West 44th Street, New York, NY 10036.

7. At all times hereinafter mentioned, third-party defendant, I.M. ROBBINS, PC, was and

still is a foreign professional corporation duly authorized or licensed to conduct business in the state of

New York, with its principal place of business located at 15 West 44 th Street, New York, NY 10036

8. At all time hereinafter mentioned, third-party defendant, LASZLO BODAK ENGINEER,

PC, was and still is a domestic professional corporation organized and existing by virtue of and under the

Laws of the State of New York, with its principal place of business located at 45 West 36th 3d Floor,

New York, New York, 10018.

9. At all times hereinafter mentioned, third-party defendant, LASZLO BODAK ENGINEER,

PC, was and still is a foreign professional corporation duly authorized or licensed to conduct business in

the state of New York, with its principal place of business located at 45 West 36th St., 3rd Floor, New

York, New York, 10018.

10. At all time hereinafter mentioned, third-party defendant, CONVENTIONAL STONE &

MARBLE CORP., was and still is a domestic corporation organized and existing by virtue of and under

the Laws of the State of New York, with its principal place of business located at 244 Mineola Boulevard,

Ste 100, Mineola, New York, 11501.

11. At all times hereinafter mentioned, third-party defendant, CONVENTIONAL STONE &

MARBLE CORP., was and still is a foreign corporation duly authorized or licensed to conduct business

in the state of New York, with its principal place of business located at 244 Mineola Boulevard, Ste 100,

Mineola, New York, 11501.

12. At all time hereinafter mentioned, third-party defendant, ROSLYN ENGINEERING

ASSOC., PC, was and still is a domestic professional corporation organized and existing by virtue of and

under the Laws of the .State of New York, with its principal place of business located at 140 Grandview

Boulevard, Yonkers, New York, 10710.

13. At all times hereinafter mentioned, third-party defendant, ROSLYN ENGINEERING

ASSOC., PC, was and still is a foreign professional corporation duly authorized or licensed to conduct

business in the state of New York, with its principal place of business located at 140 Grandview

Boulevard, Yonkers, New York, 10710.

14. At all time hereinafter mentioned, third-party defendant, INDUSTRIAL WINDOW

CORP., was and still is a domestic corporation organized and existing by virtue of and under the laws

the State of New York, with its principal place of business located at 515 North State Road, Briarcliff

Manor, NY 10510.

15. At all times hereinafter mentioned, third-party defendant, INDUSTRIAL WINDOW

CORP., was and still is a foreign corporation duly authorized or licensed to conduct business in the state

of New York, with its principal place of business located at 515 North State Road, Briarcliff Manor, NY

10510.

16. At all time hereinafter mentioned, third-party defendant, DKS CONTRACTORS, INC.

d/b/a DKS CONSTRUCTION, was and still is a domestic corporation organized and existing by virtue of

and under the laws of the State of New York, with its principal place of business located at 31 East 28th

Street, New York, NY 10016

17. At all times hereinafter mentioned, third-party defendant, DKS CONTRACTORS, INC.,

d/b/a DKS CONSTRUCTION, was and still is a foreign corporation duly authorized or licensed to

conduct business in the state of New York, with its principal place of business located at 31 East 28th

Street, New York, NY 10016.

18.At all time hereinafter mentioned, third-party defendant, GACE CONSULTING I

ENGINEERS, PLC., was and still is a professional corporation organized and existing by virtue of and

under the laws of the State of New York, with its principal place of business located at 31 West 27 th

Street, 7th Floor, New York, New York, 10001.

19. At all times hereinafter mentioned, third-party defendant, GACE CONSULTING I

ENGINEERS, P.C., was and still is a foreign professional corporation duly authorized or licensed to I

conduct business in the state of New York, with its principal place of business located at 31 West 27 th

Street, 7th Floor, New York, New York, 10001.

20. At all time hereinafter mentioned, third-party defendant, INNOVATIVE CARPENTRY, I

was and still is a domestic corporation organized and existing by virtue of and under the Laws of the State

of New York, with its principal place of business located at 135 Logan Ave., Jersey City, New Jersey, I

07306.

21. At all times hereinafter mentioned, third-party defendant, INNOVATIVE CARPENTRY,

was and still is a foreign corporation duly authorized or licensed to conduct business in the State of New

York, with its principal place of business located at 135 Logan Ave., Jersey City, New Jersey, 07306.


was and still is a foreign corporation doing business in the State of New York, with its principal place of I

business located at 135 Logan Ave., Jersey City, New Jersey, 07306.


was and still is a business entity doing business in the State of New York, with its principal place of I

business located at 135 Logan Ave., Jersey City, New Jersey, 07306.


was and still is a limited liability corporation organized and existing by virtue of and under the laws of the

State of New York, with its principal place of business located at 135 Logan Ave., Jersey City, New

Jersey, 07306.


was and still is a limited liability corporation duly authorized or licensed to conduct business in the State

of New York, with its principal place of business located at 135 Logan Ave., Jersey City, New Jersey,

07306.

26. The underlying Complaint in this action alleges that defendant/third-party defendant 112

CPS, the sponsor, breached its contract and acted negligently in its construction/conversion of 110 Central

Park South, ("Premises"), causing 110 Central Park Corporation to sustain damages as a result of 112

CPS’s breach of contract and negligence in constructing/converting 110 Central Park South from a hotel

to residential cooperative units, and/or, repairs thereto. Annexed hereto as Exhibit A is a copy of the

Complaint and same is made a part hereof.

27. The Third-Party Complaint in this action alleges that if the plaintiff was caused to sustain

damages, as alleged in the Complaint, the said damages were caused by reason of the carelessness,

negligence, fault, want of care, breach of agreement or contract, and breach of obligations on the party of

third-party defendants, COSTAS KONDYLIS & PARTNERS, LLC, GOLDSTEIN ASSOCIATES,

PLLC, I.M. ROBBINS, PC, LASZLO BODAK ENGINEER, P.C., CONVENTIONAL STONE &

MARBLE CORP., ROSLYN ENGINEERING ASSOCIATES, PC, INDUSTRIAL WINDOW CORP.,

DKS CONTRACTORS, INC. dlb/a DKS CONSTRUCTION, GACE CONSULTING ENGINEERS, PC,

and INNOVATIVE CARPENTRY, in the design, repair, maintenance, operation, supervision, control,

construction, and conversion of the premises.

28. On April 30, 2004, 112 CPS entered into an agreement with COSTAS KONDYLIS & I

PARTNERS, LLC, for the provision of architectural services for the conversion of the premises from a

hotel to residential cooperative units.

29. On or about December 11, 2003, 112 CPS entered into an agreement with I.M. ROBBINS,

PC, for the provision of mechanical engineering services including building services for electric, gas,

water, sprinkler, storm and sanitary.

30. On December 17, 2003, 112 CPS entered into a contract with GOLDSTEIN I

ASSOCIATES, PLLC, for the provision of structural engineering services for the conversion and

renovation of the premises from a hotel to residential cooperative units.

31. On or about February 7, 2005, 112 CPS entered into an agreement with GOLDSTEIN

ASSOCIATES, PLLC, for the provision of structural engineering services related to the inspection and

repair of the façade, for compliance with Local Law 11 requirements.

32. In 2007, 112 CPS entered into an agreement with LASZLO BODAK ENGINEER, PC., for

the provision of services related to the design of the PTAC enclosures and the evaluation of the PTAC

units, in connection with the construction/conversion and/or the repair work on the premises.

33. Upon information and belief, CONVENTIONAL STONE & MARBLE CORP., was a

subcontractor retained by J.T. Magen, the construction manager, to act as the masonry subcontractor to

perform work on the premises in connection with the initial construction/conversion of the premises

and/or the repair work on the premises thereafter,

34. Upon information and belief, ROSLYN ENGINEERING ASSOCIATES, PC was retained

by Intercontinental Hotels, the prior owner of the premises, to perform emergency inspections of the

I repairs performed by others, in compliance with Local Law 11 Cycle 5 Amendment.

35. Upon information and belief, INDUSTRIAL WINDOW CORP., was retained by J.T.

Magen, the construction manager, to act as the window and door installer in connection with the initial

construction/conversion of the premises and/or the repair work on the premises thereafter.

36. Upon information and belief, DKS CONTRACTORS, INC. d/b/a DKS

CONSTRUCTION, was retained by the Intercontinental Hotel, the prior owner of the premises, to

perform repair work on the premises in compliance with Local Law II Cycle 5 SWARMP repairs.

37. 112 CPS entered into a contract with GACE CONSULTING ENGINEERS, PC, to provide I

engineering services to perform repair work on the premises in compliance with Local Law 11, Cycle 6

repairs.

38. 112 CPS entered into a contract with INNOVATIVE CARPENTRY to perform I

miscellaneous carpentry work including, but not limited to, the construction of the PTAC enclosures, in

connection with the construction/conversion and/or repair of the premises.

39. If the plaintiff was caused to sustain damages, as alleged in the Complaint, then said

damages were caused by reason of the carelessness, negligence, fault, want of care, breach of agreement

or contract, and breach of obligations on the part of third-party defendants, LAZSLO BODAK I

ENGINEER, P.C., COSTAS KONDYLIS & PARTNERS, LLC, GOLDSTEIN ASSOCIATES, PLLC, I

I.M. ROBB1NS, PC, CONVENTIONAL STONE & MARBLE CORP., ROSLYN ENGINEERING I

ASSOCIATES, PC, INDUSTRIAL WINDOW CORP., DKS CONTRACTORS, INC. dfb/a DKS I

CONSTRUCTION, GACE CONSULTING ENGINEERS, P.C., and INNOVATIVE CARPENTRY, in

the design, repair, maintenance, operation, supervision, control, construction, and conversion of the I

premises.

AS AND FOR THE FIRST CAUSE OF ACTION AGAINST ALL THIRD-PARTY DEFENDANTS

40. Third party plaintiff, 112 CPS, repeats and realleges each and every allegation set forth in

paragraphs 1 through 39 above as if set forth at length herein.

41. If the plaintiff sustained the damages alleged in the Complaint, such damages were caused

by the negligence of the third-party defendants, COSTAS KONDYLIS & PARTNERS, LLC,

GOLDSTEIN ASSOCIATES, PLLC, I.M. ROBBINS, PC, LASZLO BODAK ENGINEER, P.C., I

CONVENTIONAL STONE & MARBLE CORP., ROSLYN ENGINEERING ASSOCIATES, PC, I

INDUSTRIAL WINDOW CORP., DKS CONTRACTORS, INC. d/b/a DKS CONSTRUCTION, GACE I

CONSULTING ENGINEERS, P.C., and INNOVATIVE CARPENTRY, and not due to any negligence of I

the defendant/third-party plaintiff, 112 CPS.

42. In the event judgment is recovered herein against defendant/third-party plaintiff, 112 CPS, I

it will be claimed by 112 CPS that such liability on its party will have been brought about by the conduct I

of third-party defendants, COSTAS KONDYLIS & PARTNERS, LLC, GOLDSTEIN ASSOCIATES, I

PLLC, I.M. ROBBINS, PC, LASZLO BODAK ENGINEER, P.C., CONVENTIONAL STONE & I

MARBLE CORP., ROSLYN ENGINEERING ASSOCIATES, PC, INDUSTRIAL WINDOW CORP., I

DKS CONTRACTORS, INC. dlb/a DKS CONSTRUCTION, GACE CONSULTING ENGINEERS, I

P.C., and INNOVATIVE CARPENTRY.

43. By reason of the foregoing, third-party defendants, COSTAS KONDYLIS & PARTNERS,

LLC, GOLDSTEIN ASSOCIATES, PLLC, I.M. ROBBINS, PC, LAZLO BODAK ENGINEER, P.C., I

CONVENTIONAL STONE & MARBLE CORP., ROSLYN ENGINEERING ASSOCIATES, PC, I

INDUSTRIAL WINDOW CORP., DKS CONTRACTORS, INC. d/b/a DKS CONSTRUCTION, GACE I

CONSULTING ENGINEERS, P.C., and INNOVATIVE CARPENTRY, are obligated to indemnify I

defendant third-party plaintiff, 112 CPS, against any judgment which may be recovered herein against it.

AS AND FOR A SECOND CAUSE OF ACTION AGAINST ALL THIRD-PARTY DEFENDANTS

44. Third-party plaintiff, 112 CPS, repeats and realleges each and every allegation set forth in


45. In the event plaintiff sustained the damages complained of in the Complaint, it will be

claimed by defendant/third-party plaintiff, 112 CPS, that such damages were caused or contributed to by

the negligence and carelessness of third-party defendants, COSTAS KONDYLIS & PARTNERS, LLC,

GOLDSTEIN ASSOCIATES, PLLC, I.M. ROBB1NS, PC, LAZSLO BODAK ENGINEER, P.C.,



CONSULTING ENGINEERS, P.C., and INNOVATIVE CARPENTRY, and that in the event any

judgment is recovered herein against 112 CPS, the third-party defendants are obligated to reimburse 112

CPS for such portion of the judgment which is attributable to the conduct of each third-party defendant.

AS AND FOR A THIRD CAUSE OF ACTION AGAINST COSTAS KONDYLIS & PARTNERS, LLP,

I.M. ROBBINS, PC., GOLDSTEIN ASSOCIATES, PLLC, LASZLO BODAK ENGINEER, PC, AND GACE CONSULTING ENGINEERS, PC


paragraphs I through 45 above as if set forth at length herein.

47. COSTAS KONDYLIS & PARTNERS, LLP, I.M. ROBBINS, PC, GOLDSTEIN

ASSOCIATES, PLLC, LASZLO BODAK ENGINEER, PC, and GACE CONSULTING ENGINEERS,

PC, expressly warranted to defendant/third-party plaintiff 112 CPS, all work performed in connection

with the design/construction/conversion of the premises and repairs prior and subsequent thereto would be I of good quality, free of faults and defects, and in conformance with the contract documents.

48. If the allegations of the plaintiffs are proven to be true, then COSTAS KONDYLIS &

PARTNERS, LLP, I.M. ROBBINS, PC, GOLDSTEIN ASSOCIATES, PLLC, LASZLO BODAK

ENGINEER, PC, and GACE CONSULTING ENGINEERS, PC, have breached their express warranties

with regard to their work and services.

49. Asa result of these breaches, defendant/third-party plaintiff 112 CPS, has been and will be

damaged by such breaches in that it has been and will be exposed to significant liability to plaintiff and

has incurred substantial costs and counsel fees.

AS AND FOR A FOURTH CAUSE OF ACTION AGAINST COSTAS KONDYLIS & PARTNERS, LLP,

I.M. ROBBINS, PC., GOLDSTEIN ASSOCIATES, PLLC, LASZLO BODAK ENGINEER, PC, AND GACE CONSULTING ENGINEERS, PC


paragraphs I through 49 above as if set forth at length herein.

51. Third-party defendants COSTAS KONDYLIS & PARTNERS, LLP, I.M. ROBBINS, PC,

GOLDSTEIN ASSOCIATES, PLLC, LASZLO BODAK ENGINEER, PC, and GACE CONSULTING I

ENGINEERS, PC, impliedly warranted to defendant/third-party plaintiff 112 CPS that they possessed the

skill, experience, training and expertise to perform the design and/or engineering work in accordance with

the care and skill customary in the construction industry, and that, if selected by defendant/third-party

plaintiff 112 CPS, they would, in fact, use such care and skill in performing their work on connection with

the premises.

52. Third-party defendants COSTAS KONDYLIS & PARTNERS, LLP, I.M. ROBBINS, PC,

GOLDSTEIN ASSOCIATES, PLLC, LASZLO BODAK ENGINEER, PC, and GACE CONSULTING

ENGINEERS, PC, also impliedly warranted to defendant/third-party plaintiff, 112 CPS, that their work

would be of good quality, free of defects, in conformity with contract documents, safe, and fit for the

intended purposes when constructed on the premises.

53. If the allegations of the plaintiff are proven, then third-party defendants COSTAS

KONDYLIS & PARTNERS, LLP, I.M. ROBBINS, PC, GOLDSTEIN ASSOCIATES, PLLC, LASZLO

BODAK ENGINEER, PC, and GACE CONSULTING ENGINEERS, PC, have breached their implied

warranties.

54. Defendant/third-party plaintiff 112 CPS has been and will be damaged by such breaches

in that it has been and will be exposed to significant liability to plaintiff and have incurred substantial

costs and counsel fees.

AS AND FOR A FIFTH CAUSE OF ACTION AGAINST COSTAS KONDYLIS & PARTNERS, LLP,

I.M. ROBBINS, PC., GOLDSTEIT’ ASSOCIATES, PLLC, LASZLO BODAK ENGINEER, PC, AND GACE CONSULTING ENGINEERS, PC



56. Pursuant to the express terms of the contracts between 112 CPS and third-party defendants

COSTAS KONDYLIS & PARTNERS, LLP, I.M. ROBBINS, PC, GOLDSTEIN ASSOCIATES, PLLC,

LASZLO BODAK ENGINEER, PC, and GACE CONSULTING ENGINEERS, PC, these defendants

agreed to duties, and perform certain tasks in a certain manner in connection with the construction of the

premises.

57. COSTAS KONDYLIS & PARTNERS, LLP, I.M. ROBBTNS, PC, GOLDSTEIN

ASSOCIATES, PLLC, LASZLO BODAK ENGINEER, PC, and GACE CONSULTING ENGINEERS,

PC, has breached their various duties of reasonable care and other provisions of the contracts and

agreements to 112 CPS.

58. As a result of these breaches, 112 CPS has been and will be damaged in that it has been

and will be exposed to significant liability to plaintiff and have incurred substantial costs and counsel

fees.

WHEREFORE, in the event that judgment is recovered against defendant/ third- party plaintiff,

112 CPS, 112 CPS demands judgment against each of the third-party defendants COSTAS KONDYLIS

& PARTNERS, LLC, GOLDSTEiN ASSOCIATES, PLLC, I.M. ROBBINS, PC, LASZLO BODAK

ENGINEER, P.C., CONVENTIONAL STONE & MARBLE CORP., ROSLYN ENGINEERING

ASSOCIATES, PC, INDUSTRIAL WINDOW CORP., DKS CONTRACTORS, INC. d!b/a DKS

CONSTRUCTION, GACE CONSULTING ENGINEERS, PC, and INNOVATIVE CARPENTRY, in

whole or in part, for the amount of any sum which may be recovered herein against 112 CPS, and further

demand that the relative responsibilities of said parties be apportioned together with attorneys? fees and

costs and disbursements in this action.


MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN Attorneys for Defendant/Third Party Plaintiff, 112 CEN PARKSOUT LLC

By: STEPHEN L. PETRILLO 425 Eagle Rock Avenue - Suite 302 Roseland, NJ 07068 (973) 618-4102

TO: Jay R. Fialkoff, Esq. Moses & Singer, LLP


John E. Hannum, Esq. Hannum Feretic Prendergast & Merlino, LLC One Exchange Plaza 55 Broadway, Suite 202 New York, NY 10006 (212) 530-3900 Attorneys for Defendant, J. 7’. Magen & Co., Inc.


ATTORNEY VERIFICATION

I am a member with the law firm of Marshall, Dennehey, Warner, Coleman & (3oggin, attorneys

of record for defendant/third- party plaintiff, 112 Central Park South, LLC herein, and I have read the

annexed Verified Third Party Complaint, and know the contents thereof and the same are true to my

knowledge, except those matters therein which are stated to be alleged on information and belief, and to

those matters, I believe them to be true. My belief as to those matters therein stated upon information and

belief is based upon the file maintained on behalf of and in this office.


DATED: Roseland, New Jersey May 9, 2011

MARSHALL, DENNEHEY, WARNER, COLEMAN & 000GIN Attorneys for Defendant/Third Party Plaintiff, 112 CENTRAL PARK SOUTH, LLC

By: çcJN I.L4/J)u1tO

TEPH L. PETRILLO 425 Eagle Rock Avenue - Suite 302 Roseland, NJ 07068 (973) 618-4102


I hereby certify that I caused the within third-party complaint to be filed with the Clerk of the

Supreme Court, County of New York County, via electronic filing and served upon the following counsel

via first class mail:

Jay R. Fialkoff, Esq. Moses & Singer, LLP


John B. Hannum, Esq. Hannum Feretic Prendergast & Merlino, LLC One Exchange Plaza 55 Broadway, Suite 202 New York, NY 10006 (212) 530-3900 Attorneys for Defendant, J T. Magen & Co., Inc.




104k4l, "db STEPHEN L. PETRILLO

I l/1246776.vI

EXHIBIT A

’I



Plaintiff,

V. I ANSWER

112 CENTRAL PARK SOUTH, LLC, J.T. MAGEN & COMPANY, 1NC and EPIC MECHANICAL CONTRACTORS, LLC,

Defendants.

Defendant, 112 Central Park South, LLC, ("112 CPS"), by its attorneys, Marshall, Dennehey, Warner,

Coleman & Goggin, 425 Eagle Rock Avenue, Suite 302, Roseland, New Jersey 07068, for its answer to

plaintiffs complaint, states upon information and belief herein:

THE PARTIES -

1.112 CPS has insufficient knowledge on which to form a belief as to the truth of the allegations

contained in paragraphs 1,4, 5, and 6, and leave plaintiff to its proofs.

2. 112 CPS admits the allegations contained in paragraphs 2, 3, and 7.

FACTUAL BACKGROUND


contained in paragraphs 8, 9, 10, 12, 14, and 16, and leave plaintiff to its proofs.

4. 112 CPS admits to the allegations in paragraph 11 to the extent that Magen was retained as the

general contractor on the’ project. 112 CPS has insufficient knowledge on which to form a belief

as to the truth of the balance of the allegations contained in the above paragraph and leaves

plaintiff to its proofs.

5.’ 112 CPS admits the allegations contained in paragraph 15.

6. No response is requi red .of 112 CPS to paragraph 13 as the contents of this document speaks for

itself.

OFFERING PLAN

7. No response is required of 112 CPS to paragraphs 17, 18, 19, 20, 21, 22, 23, and 25, as the terms I of these documents speak for themselves.



ACTUAL CONDITIONS EXISTING AFTER CONSTRUCTION

9. 112 CPS denies the allegations in paragraphs 26, 27, 28, 29, 30, 48, 49, 52, 58, 68, 69, and 70, to

the extent that the allegations, there in refer to 112 CPS and its involvement in the project. 112

CPS has insufficient knowledge on which to form a belief as to the truth of the balance of the

allegations contained in the above paragraphs as they pertain to parties other than 112 CPS, and

leaves plaintiff to its proofs.

10. 112 CPS denies the allegations in paragraphs 31, 32, 33, 34, 35, 36, 37, 38, 39 2 40, 41, 42, 43, 44,

45, 46, and 47 to the extent that the allegations there in refer to 112 CPS and its involvement in the

plC!ject. 112 CPS has Insufficient knowledge on which to form a belief as to the truth of the

balance of the allegations contained in the above paragraphs as they pertain to parties other than

112 CPS, reference documents whose contents speak for themselves, and leaves plaintiff to its

proofs.

11. 112 CPS has insufficient knowledge on which to form a belief as to the truth of the allógations

contained in paragraphs 48, 50, 51, 53, 54, 55, 62, and 70, and leave plaintiff to its proofs.

12. 112 CPS admits the allegations contained in paragraph 63 to the extent that it retained Lalo

Bodak Engineers, P.C., to act as a consultant on the PTACIHVAC issues. 112 CPS has-1

insufficient knowledge on which to form a belief as to the truth of the balance of the allegations


13-112 CPS admits the allegations contained in paragraph 64 to the extent that it retained Lazio

Bodak Engineers, P.C., prepared a letter of recommendation relating to repairs to the

PTACIHVAC units, 112 CPS has insufficient knowledge on which to forma belief as to the truth

of the balance of the allegations contained in paragraph 64 and leaves plaintiff to its proofs.

14.112 CPS admits the allegations contained in paragraph 65 to the extent that Magen and Epic were

called to return to the building to perform remedial/repair work. 112 CPS has insufficient

knowledge on which to form a belief as to the truth of the balance of the allegations contained in

paragraph 65, and leaves plaintiff to its proofs.

15.112 CPS denies the allegations contained in paragraphs 56, 57, 60, 61, 66, and 67.

16.No response is required of 112 CPS as to paragraph 59 as it calls for a legal conclusion.

AS AND FOR A FiRST CAUSE OF ACTION AGAINST THE SPONSOR

17.112 CPS repeats and reasserts its responses to each in every allegation contained in paragraphs 1


18.No response is required of 112 CPS to paragraph 72 as this calls for a legal conclusion.

19.112 CPS has insufficient knowledge on which to form a belief as to the truth of the allegations


20.No response is required of 112 CPS to paragraphs 74, 75, and 76 as the contents of the documents

referenced therein speak for themselves. However, to the extent that the allegations therein refer to

112 CPS and its involvement in the project, 112 CPS denies these allegations, and leaves

to its proofs.

21. 112 CPS denies the allegations set forth in paragraphs 77, 78, and 79.

AS AND FOR A SECOND CAUSE OF ACTION AGAINST THE SPONSOR







AS AND FOR THE TIURD CAUSE OF ACTION AGAINST THE SPONSOR



26, No response is required of 112 CPS to paragraph 85 as this paragraph calls for a legal conclusions.




AS AND FOR THE FOURTH CAUSE OF ACTION AGAINST THE SPONSOR






30. 112 CPS denies the allegations set forth in paragraphs 90, 91, 92, 95, 96, 97, and 98.

31. 112 CPS denies the allegations in paragraphs 93, and 94 to the extent that the allegations there in

refer to 112 CPS and its involvement in the project. 112 CPS has insufficient knowledge on

which to form a belief as to the truth of the balance of the allegations contained in the above

paragraphs as they pertain to parties other than 112 CPS, reference documents whose contents

speak for themselves, and leaves plaintiff to its proofs.

AS AND FOR THE FWFII CAUSE OF ACTION AGAINST EPIC






AS AND FOR THE SIXTH CAUSE OF ACTION AGAINST MAGEN



35.The allegations contained in paragraphs 103 through 105 do not pertain to 112 CPS. However, to



AS AND FOR THE FIRST AFFIRMATIVE DEFENSE

Plaintiffs complaint thus to state a cause of action against 112 CPS upon which relief can be

granted.

AS AND FOR A SECOND AFFIRMATIVE DEFENSE

Plaintiff may not maintain the complaint as to 112 CPS because, to the extent, if any, that

sustained any injuries and/or damages, any such injuries and or damages were not caused by 112 CPS but

were caused by the negligence, carelessness, recklessness, and/or intentional acts of third persons over

whom 112 CPS had no control.

AS AND FOR A THIRD AFFIRMATIVE DEFENSE

That all risks and dangers connected with the situation at the time and place mentioned in

plaintiffs complaint were open, obvious and apparent and were known to and assumed by the plaintiff.

AS AND FOR A FOURTH AFFIRMATIVE DEFENSE

Any injuries and/or damages sustained by the plaintiff as alleged in plaintiffs complaint were

caused in whole or in part by the contributory negligence and/or the culpable conduct of plaintiff and not

as a result of any contributory negligence and/or culpable conduct on the part of 112 CPS.

AS AND FOR A FIFTH AFFIRMATIVE DEFENSE

If plaintiff sustained damages in the manner alleged, all of which have been denied by 112 CPS,

and if the assessed liability of 112 CPS is 50 percent or less of the total liability assigned to all persons

liable, then the liability of 112 CPS to plaintiff for non-economic loss shall not exceed its equitable share

determined in accordance with the relative culpability of each person causing or contributing to the total

liability for non-economic loss.

AS AND FOR A SIXTH AFFIRMATIVE DEFENSE

In the event that any person or entity liable, or claimed to be liable, for the injuries alleged in this

action, has been given, or may hereafter be given, a release or covenant not to sue, 112 CPS will be

entitled to protection under General Obligation Law 15-108 and the corresponding reduction of any

damages which may be determined to be due against 112 CPS.

- AS AND FOR AN SEVENTH AFFIRMATIVE DEFENSE

Plaintiffs complaint is burred by applicable Statute of Limitations and/or repose.

AS AND FOR A EIGHTH AFFIRMATIVE DEFENSE

No act or conduct by 112 CPS or any agent, servant or employee caused any alleged injury,

damages or loss to plaintiff.

AS AND FOR A NINETH AFFIRMATIVE DEFENSE

Any claim against 112 CPS is or may be barred by waiver, payment or release.

AS AND FOR A TENTH AFFIRMATIVE DEFENSE

The sole, proximate cause of any alleged injury, damage or loss allegedly sustained by plaintiff

was the acts and conduct and the. negligence, carelessness, breaches of contract, warranties, duties or

obligations by persons or parties other than 112 CPS or their agents, servants, workmen or employees.

AS AND FOR A ELEVENTH AFFIRMATIVE DEFENSE

112 CPS did not make or breach any alleged warranties.

AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE.

Any claim against 112 CPS for alleged breach of warranty is barred by failure to give proper

adequate notice thereof as required by the applicable laws, including the Uniform Commercial Code, the

existence and issuance of any warranties by 112 CPS or any breach of any alleged warranties by the 112

CPS in the instant case being expressly herein denied.

AS AND FOR A TI{IRTEENFH AFFIRMATIVE DEFENSE

Pursuant to CPLR §4545(c), any award to the plaintiff for economic loss shall be reduced by the

amount of the economic loss received by collateral sources.

AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE

Plaintiff filed to mitigate or otherwise act to lessen or reduce the injuries and disability alleged in

the complaint herein.

AS AND FOR A FIRST CROSS-CLAIM AGAINST J.T. MAGEN & COMPANY, INC. AN])

EPIC MECHANICAL CONTRACTORS, LLC

1. 112 CPS entered into a contract with J.T. Magen & Company, Inc. ("Magen"), to act as the

General Contractor for the initial construction of the 110 Central Park South project.

2. Upon information and belief, Magen entered into a contract with Epic Mechanical Contractors,

LLC ("Epic"), to act as the mechanical contractor for the initial construction of - the 110 Central I Park South project.

. Although 112 CPS denies any liability whatsoever on its part, it nonetheless asserts that any and

all injuries and damages sustained by the plaintiff were the proximate result of the negligence,

wrongdoing, and/or defective workmanship and products and materials provided by Magen and

Epic.

4. 112 CPS demands contribution from Magen and Epic pursuant to CPLR 1401.

AS AND FOR THE SECOND CROSS-CLAIM AGAINST MAGEN AND EPIC

5. Although the 112 CPS denies any liability whatsoever on its part, if judgiient is recovered by the

plaintiff against 112 CPS, it is hereby asserted that its negligence, if any, was not morally

culpable, but was merely constructive, technical, imputed or vicarious, and that plaintiffs

damages arose through the direct and primary negligence of Magen and Epic, if any.

6.. Magen and. Epic are obligated by operation of law and contract and otherwise to defend and

indemnify 112 CPS, and hold 112 CPS harmless from any and all claims which are the subject

this lawsuit.

AS AND FOR THE THIRD CROSS-CLAIM AGAINST MACEN

7. Magen expressly warranted to 112 CPS that all materials and equipment furnished in connection

with the construction of the 110 Central Park South project and all work performed would be of

good quality, free of faults and defects, and in conformance with the contract documents.

8. If the allegations of the plaintiffs are proven to be true, then Magen has breached its express

warranties with regard to its work and materials.


to significant liability to plaintiff and has incurred substantial costs and counsel fees.

AS AND FOR THE FOURTH CROSS-CLAIM AGAINST MACEN

10.Magen represented to 112 CPS that it they possessed the skill, experience, training and expertise

to perform the work in accordance with the care and skill customary in the construction industry,

and that, if selected by 112 CPS, it would, in fact, use such care and skill in performing their

work on the 110 Central Park South project.

11.112 CPS has been and will be damaged by such breaches in that it has been and will be exposed


12.Magen also impliedly warranted to 112 CPS that its work would be of good quality, free of

defects, in conformity with contract documents, safe, and fit for the intended purposes of the 112

Central Park South project.

13.If the allegations of the plaintiff are proven, then defendant Magen has breached their implied

warranties.

14.112 CPS has been and will be damaged by such breaches in that it has been and will be exposed


AS AND FOR THE FIFTH CROSS-CLAIM AGAINST MAGEN AND EPIC


agreed to procure insurance naming 112 CPS as an additional insured and providing 112 CPS

with primary insurance coverage for the damages alleged by plaintiff.

16.112 CPS is entitled to damages from Magen for any sums for which it may be adjudged liable to

the plaintiff that is otherwise not covered by its own insurance as a result of Magen’s express

contractual insurance provision obligation.

AS AND FOR THE SIXTH CROSS-CLAIM AGAINST MAGEN


agreed to indemnify 112 CPS and hold it harmless and its agents and employees from and

against all claims, damages, losses and expenses, including but not limited to attorney’s fees,

arising out of or resulting from the performance of their work and caused in whole or in part by

any negligent act or omission by the co-defendant or by anyone directly or indirectly employed

by them.

18.112 CPS is entitled to contractual indemnification from MÆgen for any sums for which it may be

adjudged liable to the plaintiff.

AS AND FOR THE SIXTH CROSS-CLAIM AGAINST MAGEN AND EPIC

19.Pursuant to the express terms of the contracts between 112 CPS and Magen, Magen agreed to

duties, and perform certain tasks in a certain manner in connection with the construction of the

premises.

20.Magen has breached its various duties and agreements to 112 CPS.

21. As a result of these breaches, 112 CPS has been and will be damaged in that it has been and will

be exposed to significant liability to plaintiff and have incurred substantial costs and counsel

fees.

WHEREFORE, defendant 112 CPS, demands judgment dismissing the complaint in its entirety,

together with cost and disbursements, and attorneys fees of this action, or in the alternative, in the event

that plaintiff recovers any verdict/judgment against 112 CPS, 112 CPS also demands judgment over and

against Magen and Epic, in whole or in part, in accordance with the cross-claims herein above set forth,

together with costs, disbursements and attorneys fees in the defense of this action or any other or further

relief that the court deems just and proper.

DATED: Roseland, New Jersey February 24, 2011

MARSHALL, DENNEHEY, WARNER, COLEMAN & 000GIN Attorneys for Defendant, 112 Central Park South LLC

425 Eagle 1ck Avenue - Suite 302 Roseland, NI 07068

(973) 618-4146


I hereby certify that I caused the within answer to the third-party complaint to be filed with the

Clerk of the Supreme Court, County of New York, and the following counsel via first class mail:


Dated; February23, 2011

11/1216849A


110 CENTRAL PARK SOUTH CORPORATION, INDEX NO.: 65298/2010

Plaintiff

- against -

112 CENTRAL PARK SOUTH, LLC, J.T. MAGEN & COMPANY, INC., AND EPIC MECHANICAL CONTRACTORS, LLC,,

Defendants

Civil Action

DEFENDANT, 112 CENTRAL PARK SOUTH, LLC’S ANSWER TO PLAINTIFF’S COMPLAINT

MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN Attorneys for Defendants

425 Eagle Rock Avenue, Suite 302, Roseland, New Jersey 07068, (973) 618-4100

Pursuant to 22 NYCRR 130-I.!, the undersigned, an attorney admitted to practice in the courts of New York Slate, certfIes that, upon information and belief and reasonable Inquiry, the contentions contained In the annexed document are not frivolous.

Dated: Signature

Print Signer’s Name: Pauline F. Tutelo

Service of a copy of the within is hereby admitted. Date:

Attorney(s) for

EXHIBIT D

(A We COURT OF THE STATE/CITY OF NEW YORK COUNTY OF: NEW YORK-NY ATTORNEY: STEPHEN L. PETRILLO, ESQ.

110 CENTRAL PARK SOUTH CORPORATION - against -

112 CENTRAL PARK SOUTH, LLC. ET AL

�1 I 11101 0IIIIIII 0111 11111 11111 11111 OIl! 1111 III! Fill 0111 liii 11111 III! IF 2011O51711i14

Petitioner(s) I AFFIDAVIT ’?

Plaintiff(s) I OF SERVICE Respondent(s) Defendant(s) INDEX#

652098 10

STATE OF: NEW 4ORX. COUNTY OF: JE1i3 YOZIL I.!p) 1’VJLC-14 That on date/time: 1 deponent served the

is_over 18 an d resides in

Summons, Spanish summons & complaint, the language required by NRCRR 2900.2(e), (f) & (h) was set forth on the face of the summons(es) -

On: COSTAS KONDYLIS & PARTNERS LLC / -

Defendant I4’Respondent ] Witness (hereinafter called the recipient) therein named.

INDIVIDUAL By personally delivering to and leaving with said COSTAS KONDYLIS & PARTNERS LLC A I and that he knew the person so served to be the person mention and described in said SUMMONS. STATEMENT PURSUANT TO CPL RULE 3401, VERIFIED THIRD PARTY COMPLAINT, VERIFICATION, EXHIBIT A

CORPORATION Byd Iivbngto ndleavinqwith /#&f B at fit4)1 JL’L� ,fuJ L/,7/( fV

and that he knew the person so served to be th4il _I~A q 2. J of the corporation.

SUITABLE Service was made in the following manner after your deponent was unable With due diligence to serve the defendant in person: if

AGE PERSON By delivering a true copy thereof to and leaving with C (3 a person of suitable age and discretion at

the said premises being the recipients (] Dwelling/Usual place of abode [ ) Actual place of business within the State of New York.

Ii AFFIXING TO By affixing a true copy thereof to the door of said premises, the same being the recipient’s DOOR, ETC. ] Dwelling/Usual place of abode [1 Actual place of business within the State of New York. Deponent had previously attempted to serve D (1 the above named recipient on/at: 1. 2. ________ 3.

Deponent spoke with ____ who stated to deponent that the said recipient(s) lived at the aforementioned address, but did not know recipients place of employment.

MAILING TO Within 20 days of such delivery or affixing, deponent enclosed a copy of same in a postpaid envelope properly addressed to recipient RESIDENCE to recipients last known residence at El [] and deposited said envelope in an official repository under the exclusive care and custody of the US Postal Service Use with C or 0 within New York State on

MAILING TO Within 20 days of such delivery or affixing, deponent enclosed a copy of same in a postpaid envelope property addressed to recipient BUSINESS to recipient’s actual place of business at E2 ] in an official repository under the exclusive care an custody of the US Postal Service within New York State. The envelope bore the Use with C or D legend "Personal and Confidential’ and did not indicate on the outside thereof, by return address or otherwise, that the communication

was from an attorney or concerned an action against the recipient and mailed on

F (XJ DEPONENT STATES THAT THE INDEX # AND FILING DATE WERE CLEARLY VISIBLE ON THE SUMMONS. DESCRIPTION OF THE RECIPIENT OR OTHER PERSON SERVED OR SPOKEN TO ON BEHALF OF THE RECIPIENT IS AS:

VOID WITHOUT DESCRIPTION

[ ] Male Jhite Skin Hair ( I White Hair 114-20 Yrs. 11 Under 5’ [1 Under 100 Lbs.

Use with A,B,C,D ( Black Skin ’1j 2 1

KEIIack

’C4Female ) rown Hair [3 Balding -35 Yrs. L5 0" - 53’ [ ]100- 130 Lbs. ( ] Yellow Skin londe Hair (1 Moustache [ 136 - 50 Yrs. 4.4’ - 58" ’J43 - 160 Lbs.

]Brown Skin [ 3 Gray Hair ( ]Beard [ ]51 -6SYrs. I ]5’9’-6’0" f]161 -200 Lbs. I] Red Skin [3 Red Hair (1 Glasses [1 Over 65 Yrs. [ ] Over 6’ [lOver 200 Lbs.

Other identifying features:

WITNESS FEE Witness fee of $0 the authorizing traveling expenses and one day’s witness fee: G [1 ( 3 was paid (tendered) to the recipient I was mailed to the witness with subpoena copy. Ill)

MILITARY I asked the person spoken to whether defendant was in active military service of the United States or of the state of New York in any SERVICE capacity whatsoever and received a negative reply. Defendant wore civilian clothes and no military uniform. The source of my

1X3 information and the grounds of my belief are the conversations and observations above narrated. -

Subscribed and orn to me

14T

_______ifA V f’0J7

_________________________ interes. 20tH t in the litigation. !

service a competent adult day

ristina__ d ct. corre

Ch Hummier

ialty of perjury that the Notary Signature:

Name oli Public, State of New Yoh S 70 t..ommission Expiration SVuVe of Process Server Date

No. 01HU4637421 Qualified in Suffolk

Commlslort Expires 6/30/201/7/

Jsv

EXHIBIT E

A REGIONAL DEFENSE LITIGATION LAW FIRM

PENNSYLVANIA Bethlehem Doylestown Erie Harrisburg King of Prussia Philadelphia Pittsburgh Scranton Williamsport

NEW JERSEY Cheery Hill Roseland

I MARShALL, DEi.mnnY, WARNER, CouLAr1 8 Goxi I A PROFESSIONAL CORPORATION www.inarshalldennehey.com

425 Eagle Rock Avenue, Suite 302 Roseland, NJ 07068 (9 73) 618-4100 Fax (9 73) 618-0685 Joseph A. Manning, Resident Managing Attorney

Direct Dial: 973-618-4146 Email: [email protected]

May 13, 2011

DELAWARE Wilmington

Osato Akron

FLORIDA Ft. Lauderdale Jacksonville Orlando Tampa

Via U.S. Mail and Certified Mail RRR 7010 0780 0001 4397 9220 Costas Kondylis & Partners, LLC do Kondylis Architecture, P.C.

115 Fifth Ave. New York, NY 10003

RE: 110 Central Park South Corp., Inc. v. 112 Central Park South, LLC Supreme Court of the State of New York, County of New York Index No. 652098/10 Our File No.: 13016.00195-SLP

Dear Sir/Madam:

Please be advised that we represent 112 Central Park South, LLC ("112 CPS"), in connection with the above matter. Enclosed please find a courtesy copy of the Third-Party Complaint we are in the process of formally serving upon you as required by the CPLR.

We are writing to place Kondylis on notice 110 Central Park South is currently undergoing investigation and remediation which may relate to the work performed by it on that project. Should you wish to take part in these inspections, please contact the plaintiffs counsel, Jay R. Fialkoff, Esq., Moses & Singer, LLP, (212) 554-7850.

Should you have any questions, please do not hesitate to contact me directly. Thanking you for your attention, I am,

Very truly yours,

PAULINE F. TUTELO PFT/pt End. (’i’ Uffl p-mnil

Jay R. Fialkoff, Esq. John E. Hannum, Esq. Bruce R. Connolly, Esq.

Costas Kondylis & Partners, LLC. May 13, 2011 Page 2

bcc via e-mail: Mr. Jim Egan Mr. Steven Glaskock Stephen L. Petrillo, Esq.

I I/1261750.vI

� Complete Items 1, 2 and 3. , Also complete At Sn1ture

Item 4 If Restricted Delivery. is desired. (7 0 Agent � Print your qame and address on the reverse . I�iL 0 Addressee

so that we can return the card to you. elved by (Pd,ftedName) P I C. Date of Delivery I. Attach this card to the back of the mailpiece,

or on the front If space permits. � � 1. Article Addressed to:

D. Is delivery address different from item 1? 0 Yes

If YES, enter delivery address belłw: 0 No

’ostas l<oncIyhs F’urtncrs, LLL do Kondylis ithitecture, P.C.

ll5 Fifth Ave. � New York, NY 10003

3. Type � Certified Mall 0

Estered . . . oJreendIse - 0 Insured Mail

4 Restricted Deiw DYes

2Article a ep,,ce:abeO 7010 0780 000L 4397 92I]

PS Form 3811 February 2004 Domestic RjcØt 1"2M-154O

-I

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