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cument 1

Filed 08/31/12 Page 1 of 7

Gregory G. Barnett Janine Brown CASEY & BARNETT, LLC 65 West 36th Street, 9th Floor New York, New York 10018 (212)286-0225 Attorneys for Plaintiff

12 C 66 73 V
AUG 3 1 2012

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ACE AMERICAN INSURANCE COMPANY a/s/o SCOTT MARK & PETER SCALAMANDRE, Plaintiff,

U.S.D.C.&ij.i?.Y. CASHES

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2012 Civ.

COMPLAINT - against APPROVED MARINE, INC., Defendant.

... _x
COMPLAINT Plaintiff, ACE AMERICAN INSURANCE COMPANY a/s/o SCOTT MARK & PETER SCALAMANDRE, by and through its attorneys, Casey & Barnett, LLC, as and for its Complaint, alleges upon information and belief as follows: JURISDICTION 1. This is an admiralty and maritime claim within the meaning of Rule 9(h) of the

Federal Rules of Civil Procedure. Jurisdiction is predicated upon 28 U.S.C. 1333. PARTIES 2. At all material times, ACE AMERICAN INSURANCE COMPANY (hereinafter

"ACE" or "Plaintiff) was and is a corporation with an office and place of business located at

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1133 Avenue of the Americas, New York, New York 10036-6710, and is the subrogated insurance underwriter of SCOTT MARK & PETER SCALAMANDRE. 3. At all material times, SCOTT MARK (hereinafter "Mark") of 263 Gordon Place,

Freeport NY 11520 was the owner of a 2003, 34-foot Mainship Pilot 34 motorboat (hereinafter the "Mark Boat"), bearing hull identification number MPTGE296L203. 4. At all material times, PETER SCALAMANDRE (hereinafter "Scalamandre") of 55

Crescent Cove Court, Seaford NY 11783 was the owner of a 1997, 51-foot Sunseeker Express Camarque (hereinafter the "Scalamandre Boat"), bearing hull identification number

YSK20751L697. 5. At all material times, defendant, APPROVED MARTNE, INC. (hereinafter

"Defendant" or "Approved Marine") was and is a corporation with an office and place of business located at 11 Hudson Avenue, Freeport NY 11520, and is engaged in the business of, among other things, a Boat Yard and/or Marina which hauls and stores boats for the Winter for a fee and was at all times acting in the capacity of a bailee for hire. 6. Plaintiff brings this action on its own behalf and as agent and/or trustee on behalf

of and for the interest of all parties who may be or become interested in the said consignment, as their respective interests may ultimately appear, and plaintiff is entitled to maintain this action. RELEVANT FACTS 7. At all material times Approved Marine operated a boat storage yard at 11 Hudson

Avenue, Freeport NY 11520 (hereinafter the "Yard"). 8. At all material times, Scott was the owner of the Scott Boat and a customer of

Approved Marine and engaged the Yard to haul and store his boat for the winter and was the bailor of the Scott Boat.

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9.

Scott delivered the Scott Boat in good order and condition, for winter storage at

the Yard, and Approved Marine received the vessel, hauled the vessel and stored the vessel in the Yard. 10. At all material times, Scalamandre was the owner of the Scalamandre Boat and a

customer of Approved Marine and engaged the Yard to haul and store his boat for the winter and was the bailor of the Scalamandre Boat. 11. Scott delivered the Scott Boat in good order and condition, for winter storage at

the Yard, and Approved Marine received the vessel, hauled the vessel and stored the vessel in the Yard. 12. On or about February 1, 2012, two employees of Approved Marine began repair

work on a 1987 Silverton boat in the Yard named Atlantis. 13. 14. During the process of repairing the Atlantis, a fire started at Approved Marine. Both the Scott Boat and the Scalamandre Boat (hereinafter the "subject Boats"

sustained severe fire and smoke damage as a result of the fire. 15. As a result of the fire, the Scott Boat was deemed a total loss by both Approved

Marine and Scott's representatives and was destroyed. 16. 17. 18. 19. Scott sustained a loss of no less than $185,766.45. As a result of the fire, the Scalamandre Boat was severely damaged. Scalamandre sustained a loss of no less than $191,872.02. At all times relevant hereto, a contract of insurance for property damage was in

effect between Scott and ACE, which provided coverage for, among other things, loss or damage to the Scott Boat that is the subject matter of this litigation.

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20.

At all times relevant hereto, a contract of insurance for property damage was in

effect between Scalamandre and ACE, which provided coverage for, among other things, loss or damage to the Scalamandre Boat that is the subject matter of this litigation. 21. Pursuant to the aforementioned contracts of insurance, monies have been

expended on behalf of Scott and Scalamandre to the detriment of ACE due to the damages sustained as a result of the fire. 22. As ACE has sustained damages as a result of said expenditures, expenditures

rightly the responsibility of the defendant, ACE has an equitable right of subrogation and is subrogated, to the extent of its expenditures, to the rights of its insured with respect to any and all claims for damages against the defendant. 23. By reason of the foregoing, plaintiff has sustained losses which will be shown

with specificity at trial, no part of which has been paid, although duly demanded, which are presently estimated to be no less than $377,638.47.

COUNT 1 BREACH OF CONTRACT


24. Plaintiff repeats, reiterates and realleges each and every allegation contained in

paragraphs 1 through 23, inclusive, as if herein set forth at length. 25. Plaintiffs delivered the subject Boats in good order and condition to Approved

Marine who thereupon took delivery and possession of the Boats. 26. Pursuant to the contract for storage, defendant owed contractual duties to Scott

and Scalamandre to store, bail, keep and care for, protect and deliver the subject Boats in the same good order and condition as at the time it received and accepted the subject Boats for storage.

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27.

Approved Marine breached its contractual duties by failing to store, bail, keep and

care for, protect and deliver the subject Boats in the same good order and condition as at the time it received and accepted the subject Boats for storage. 28. The losses sustained by Plaintiffs were not the result of any act or omission of

Plaintiffs but, on the contrary, were solely the result of defendant's fault, neglect, breach of contract and breach of bailment. 29. Plaintiffs and/or and their predecessors have performed all of the conditions

precedent on their part to be performed under the terms of the contracts. 30. By reason of the foregoing, Plaintiffs have sustained losses which will be shown

with specificity at trial, no part of which has been paid, although duly demanded, but which are presently estimated at $377,638.47. COUNT II BREACH OF BAILMENT 31. Plaintiff repeats, reiterates and realleges each and every allegation contained in

paragraphs 1 through 29, inclusive, as if herein set forth at length. 32. Plaintiffs delivered the subject Boats in good order and condition to Approved

Marine who thereupon took delivery and possession of the Boats. 33. Pursuant to its obligations as a bailee for hire of the subject Boats for fall haul and

storage of the Boats for Winter, Approved Marine owed contractual and statutory duties to Scott and Scalamandre to store, bail, keep and care for, protect and deliver the subject Boats in the same good order and condition as at the time it received and accepted the Boats for storage.

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34.

Approved Marine breached its duty as a bailee for hire by failing to store, bail,

keep and care for, protect and deliver the subject Boats in the same good order and condition as at the time they received and accepted the subject Boats for storage. 35. The losses sustained by Plaintiffs were not the result of any act or omission of

Plaintiffs but, on the contrary, were solely the result of defendant's fault, neglect, breach of contract and breach of bailment. 36. Plaintiffs and/or and their predecessors have performed all of the conditions

precedent on their part to be performed under the terms of the contracts. 37. By reason of the foregoing, Plaintiffs have sustained losses which will be shown

with specificity at trial, no part of which has been paid, although duly demanded, but which are presently estimated at $377,638.47. COUNT HI NEGLIGENCE 38. Plaintiff repeats, reiterates and realleges each and every allegation contained in

paragraphs 1 through 31, inclusive, as if herein set forth at length. 39. Plaintiffs delivered the subject Boats in good order and condition to Approved

Marine who thereupon took delivery and possession of the Boats. 40. Approved Marine owed a duty to Scott and Scalamandre to store, bail, keep, care

for, and deliver the subject Boats. Approved Marine owed a duty to Plaintiff to exercise due care in its control and custody of the subject Boats. 41. Approved Marine breached and was negligent and grossly negligent in its duties

by failing to store, bail, keep and care for, protect and deliver the subject Boats in the same good order and condition as at the time they received and accepted the subject Boats for storage.

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42.

The losses sustained by Plaintiffs were not the result of any act or omission of

Plaintiffs but, on the contrary, were solely the result of defendant's fault, neglect and gross negligence. 43. Plaintiff and/or and their predecessors have performed all of the conditions

precedent on their part to be performed under the terms of the contracts. 44. By reason of the foregoing, Plaintiffs have sustained losses which will be shown

with specificity at trial, no part of which has been paid, although duly demanded, but which are presently estimated at $377,638.

WHEREFORE, for the foregoing reasons, Plaintiff prays that the Court grant the following: 1. That process in due form of law may issue against defendant citing it to appear

and answer all and singular the matters aforesaid; 2. That judgment may be entered in favor of plaintiff against defendant for the

amount of plaintiff s damages in the amount of at least $377,638.47, together with interest, costs, attorney fees and the disbursements of this action; and 3. proper. Dated: New York, New York August 31, 2012 230-56/57 CASEY & BARNETT, LLC Attorneys for Plaintiff By: GreyoYy C'i. Barnett 65 West 36Ul Street, 9th Floor New York, New York 10018 (212)286-0225 That this Court grant to plaintiff such other and further relief as may be just and

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