1 West Residents vs. Moinian & Elliman

7/29/2019 1 West Residents vs. Moinian & Elliman

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SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK-------------------------------------------------------------------X

YIN HOU, individually and on behalf of all other

similarly situated Plaintiffs,

Plaintiffs,

v.

OCEAN PRIME, LLC, OCEAN PARTNERS LLC,

OCEAN PARTNERS SPE CORP.,

RESIDENTIAL MANAGEMENT GROUP, LLC,d/b/a DOUGLAS ELLIMAN PROPERTY

MANAGEMENT, and OCEAN CAR PARK, LLC,

d/b/a GGMC Parking, LLC,

Defendants.

-------------------------------------------------------------------X

INDEX NO. _______________

SUMMONS

TO: THE ABOVE NAMED DEFENDANTS:

YOU ARE HEREBY SUMMONED to answer the Complaint in this action and to serve

a copy of your Answer, or, if the Complaint is not served with this Summons, to serve a notice of

appearance, on the plaintiffs attorney within 20 days after service of this Summons, exclusive of

the day of service, where service is made by delivery upon you personally within the state, or

within 30 days after completion of service where service is made in any other manner. In case of

your failure to appear or answer, judgment will be taken against you by default for the relief

demanded in the Complaint. The basis of the venue is the Defendants principal places of

business and the location in which this cause of action arose.

Dated: January 22, 2013New York, New York NAPOLI, BERN, RIPKA & SHKOLNIK, LLP

350 Fifth Avenue, Suite 7413New York, New York 10118

(212) 267-3700 (Phone)(212) 587-0031 (Fax)

-and-IMBESI CHRISTENSEN450 Seventh Avenue, Suite 3002New York, New York 10123

(212) 736-0007 (Phone)

(212) 658-9177 (Fax)

Attorneys for Plaintiffs

ILED: NEW YORK COUNTY CLERK 01/22/2013 INDEX NO. 150612/20

SCEF DOC. NO. 1 RECEIVED NYSCEF: 01/22/20


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Defendants Addresses:Ocean Prime, LLC1 West Street

New York, New York 10004

Ocean Partners, LLCc/o The Moinian Group

530 Fifth Avenue, Suite 1800


Ocean Partners SPE Corp.

c/o The Moinian Group530 Fifth Avenue, Suite 1800


Residential Management Group, LLC

d/b/a Douglas Elliman Property ManagementAttn: Brian K. Ziegler

90 Merrick AvenueEast Meadow, New York 11554

Ocean Car Park, LLC

d/b/a/ GGMC Parking, LLC1651 Third Avenue



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SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF NEW YORK-------------------------------------------------------------------X

YIN HOU, individually and on behalf of all other

similarly situated Plaintiffs,

Plaintiffs,

v.

OCEAN PRIME, LLC, OCEAN PARTNERS LLC,

OCEAN PARTNERS SPE CORP.,RESIDENTIAL MANAGEMENT GROUP, LLC,

d/b/a DOUGLAS ELLIMAN PROPERTY

MANAGEMENT, and OCEAN CAR PARK, LLC,

d/b/a GGMC Parking, LLC,

Defendants.-------------------------------------------------------------------X

INDEX NO. ________________

CLASS ACTION COMPLAINT

Jury Trial Demanded

Plaintiff Yin Hou, by and through his attorneys, Napoli Bern Ripka Shkolnik, LLP, and

Imbesi Christensen, brings this Class Action Complaint ("Complaint") against the Defendants

Ocean Prime, LLC (Ocean), Ocean Partners, LLC (Partners), Ocean Partners SPE Corp.

(Partners SPE), Residential Management Group, LLC, d/b/a Douglas Elliman Property

Management (DEPM), and Ocean Car Park, LLC, d/b/a/ GGMC Parking, LLC (GGMC

Parking), (collectively Defendants), and on behalf of himself and all other similarly situated

residential and commercial tenants (the ClassMembers), of 1 West Street, New York, New

York 10004 (1 West Street or the Premises), and alleges upon information and belief as

follows:

NATURE OF THE ACTION

1. Plaintiffs seek damages for their claims arising out of Defendants failure toexercise due care to adequately secure, protect or otherwise care for the real property located at 1

West Street subsequent to multiple warnings issued by the National Hurricane Center (NHC)


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and by New York City government officials for residents of lower Manhattan prior to

Superstorm Sandy (also referred to as the Storm or Sandy), and for their negligence

relating to their failure to mitigate damages before, during and subsequent to the Storm.

JURISDICTION AND VENUE

2. This Court has personal jurisdiction over the corporate Defendants pursuant toC.P.L.R. 301 because the Defendants are New York limited liability companies and registered

foreign companies that conduct business in New York County.

3. Venue is proper in the Supreme Court of the State of New York, New YorkCounty pursuant to C.P.L.R. 503 as the causes of action arose in New York County.

PARTIES

A. Plaintiffs4. Plaintiff Yin Hou is a citizen of the State of New York and resides in New York

County and is an individual residing in the building located at 1 West Street, New York, New

York 10004.

5. The class consists of all residential and commercial tenants of 1 West Street onOctober 29, 2012.

B. Defendants6. Defendant Ocean Prime, LLC is a foreign limited liability company registered to

conduct business in the State of New York, with its principal place of business located at 1 West

Street, New York, New York 10004.

7. Defendant Ocean Partners, LLC is a domestic limited liability company formedand existing under the laws of the State of New York, with its principal place of business located


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at 530 Fifth Avenue, New York, New York 10036. Ocean Partners, LLC, is the Sole Member of

Ocean Prime, LLC.

8. Defendant Ocean Partners SPE Corp. is a Delaware company registered toconduct business in the State of New York, with its principal place of business located at 1 West

Street, New York, New York 10004. Ocean Partners SPE Corp. is the Manager of Ocean Prime,

LLC.

9. Defendant Residential Management Group, LLC, d/b/a Douglas Elliman PropertyManagement is a foreign limited liability company formed and authorized to conduct business in

the State of New York. At all relevant times, DEPM was retained by Defendants Ocean, Partners

and Partners SPE to act as the Managing Agent for the property located at 1 West Street, New

York, New York 10004.

10. Defendant Ocean Car Park, LLC, d/b/a/ GGMC Parking, LLC is a domesticlimited liability company formed and existing under the laws of the State of New York, with its

principal place of business located at 1651 Third Avenue, New York, New York 10128.

STATEMENT OF FACTS

A. Superstorm Sandy11. On October 22, 2012, the NHC issued its first forecast and public advisories

regarding Superstorm Sandy. Thereafter, NHC issued multiple advisories on a daily basis

regarding the Storms strength and its predicted path.

12. By Thursday, October 25, 2012, the NHC warned that the entire eastern coast ofthe United States should be closely monitoring the progress of Superstorm Sandy.

13. On Saturday, October 27, 2012, the NHC and National Weather Service (NWS)began predicting levels of storm surges in New York and New Jersey as high as eleven (11) feet.


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National weather forecasters repeatedly warned New York and New Jersey residents that

maximum precautionary measures should be taken.

14. On Sunday, October 28, 2012, at or about 11:00 a.m., Mayor Bloomberg orderedmandatory evacuation of Zone A. Zone A is an area designated by New York City officials as

low lying areas that are prone to flooding within the five boroughs. In Manhattan, Zone A

includes Battery Park City and sections of the West Side waterfront, Lower East Side, East

Village, and in the financial district in Manhattan.

15. At the mandatory evacuation press conference, Mayor Bloomberg warnedproperty owners, businesses and residents, especially those in lower Manhattan, that tides

overnight tonight will lead to coastal flooding in Zone A.We anticipate the surge will hit a lot

of low lying areas, and the possibility of flooding will continue into Tuesday afternoon.

16. At this time, New York residents were also told that all subways, buses and trainswould be shut down at 7:00 p.m., on October 28, 2012.

17. On or about October 29, 2012 the Consolidated Edison Company of New York,Inc., (Con Ed) shut off power to property located in lower Manhattan including power to 1

West Street.

18. Sandy made landfall in lower Manhattan on Monday, October 29, 2012, atapproximately 7:00 PM.

B. 1 West Street19. There are approximately five hundred residential apartments and fifteen floors of

commercial space located at 1 West Street. The Premises is capable of accommodating over two

thousand commercial employees/individuals. A parking garage is also located at the Premises.

20. 1 West Street is located in Zone A.21. At all relevant times, Defendant Ocean was the owner of 1 West Street.


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22. At all relevant times, Defendants were responsible for preparing for any potentialdamage at the Premises caused by Sandy and were responsible for maintaining the Premises in a

safe and habitable condition following the Storm.

23.

Sometime after the storm surges caused water to overflow onto the streets of

lower Manhattan on Monday night, October 29, 2012, water entered 1 West Street's basement

and parking garage.

24. Between 7:00 and 8:00 p.m., Class Members observed that some basement doorsand windows were left partially open, and witnessed flood waters entering the Premises through

the basement windows and doors left open and/or not properly secured.

25. Defendants failed to take necessary precautions with respect to the basementdoors and windows. Defendants failed to place sandbags, or any other restrictive barriers in front

of the doors or windows of the Premises. Defendants failure to take any rudimentary measures

to protect the buildings doors and low-lying windows allowed flood water to enter the building.

26. Defendants also failed to take necessary precautions with respect to the parkinggarage entrance. Defendants failed to place sandbags, or any other restrictive barriers in front of

the entrance to the parking garage, and they failed to take any other effective precautions with

respect to the garage entrance and the perimeter of the property. As a result, water freely

accessed the garage and basement of 1 West Street. Vehicles in the parking garage became

submerged in the flood water, causing oil and gasoline from the vehicles to enter and permeate

the flood water.

27. Just days before Sandy, 1 West Street received a delivery of twenty thousandgallons of heating oil. The oil began leaking because Defendants did not properly secure the

boiler and oil tank.


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28. During the night of October 29, 2012, Class Members observed a one hundredyard oil slick flowing out of the garage.

29. Had Defendants properly secured the Premises doors and windows the Premiseswould not have been flooded.

30. Given the lack of force generated by the storm surge water, the only portions ofthe building requiring barriers were the entrances to the building.

31. Defendants failed to construct adequate barriers prior to the storm. Specifically,the Defendants failed to construct barriers in front of the building's perimeter, including the

parking garage entrance, the building entrances and ground floor windows. As a result of the

Defendants negligence, the building was rendered uninhabitable due to damage caused by

flooding.

32. Given the ample amount of warning, Defendants knew, or should have known,that water could access the perimeter of the building and cause substantial damage.

33. The flood water and oil from the boiler caused significant damage to themechanical and electrical systems for the building. The flood waters and oil posed a serious fire

hazard. Both the New York City Fire Department and the New York State Department of

Environmental Protection ("DEP") had to assist in removing water and oil from the Premises.

34. Additionally, the mixture of oil and flood water caused a toxic environment thatwas reported to the DOB. DOB officials subsequently designated 1 West Street as "unsafe" and

no one was permitted to enter. Several days later, the designation was changed to "restricted

use."

35. As a result of the water containing oil and gasoline, diesel fuel fumes spreadthroughout the building. The fumes affected the air quality and permeated the entire building,

including apartment floors, walls, ceilings, furniture and clothing located on the Premises.


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36. 1 West Street was uninhabitable and Class Members were forced to makealternative living and commercial office arrangements, without the use of their personal property

because of the damage to operational systems, all of which were underground, including heat,

hot water, electric, ventilation, water filtration and sprinkler systems.

37. Defendants were negligent in their: (1) failure to construct adequate waterbarriers around the building's perimeter; (2) failure to lock or secure doors and windows before

the storm; (3) failure to lock or secure doors and windows during the storm which allowed the

flow of additional water after it started entering; (4) failure to secure doors leading to the

basement; and (5) filling of buildings gas tanks prior to the storm. These negligent acts,

individually and together, caused the damage to the mechanical equipment located in the

basement which ultimately rendered the building uninhabitable.

38. The resulting damage was foreseeable and could have been prevented by theDefendants. Actions as simple as locking ground level windows, boarding up windows and

doors and/or placing sandbags around the doors and windows could have prevented the subject

damages.

C. 1 West Street Post Superstorm Sandy1.Defendants' Inability to Communicate a Reasonable Re-Occupancy Date

Caused Class Members Additional Damages

39. Following the storm, Defendants consistently provided inaccurate informationand/or conflicting information to Class Members about the return to 1 West Street that prevented

the Class Members ability to make temporary housing and commercial office arrangements.

40. On or about October 30, 2012, Defendants told Class Members that city officialsprohibited anyone from staying in the building because of the safety concerns, however, Class

Members could return to collect pets and personal belongings. At that time, Defendants told


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Class Members that they were "working as quickly as possible" to return Class Members to the

building.

41. On or about November 4, 2012, Defendants told Class Members that water wasstill being pumped from the flooded basement and garage, but that it was "a slow process

because the water has to be separated from the oil" which requires the DOB and the DEP to

perform a safety inspection of the water removal process every 10-15 minutes.

42. On or about November 5, 2012, Defendants provided Class Members with a"question and answer" sheet. In this memorandum, despite the fact that the apartments and

commercial offices were not habitable, Defendants told Class Members that "the rent is due on

the 1st." However, Defendants stated that they would "waive the late fee for those unable to get

payments in within the usual grace period."

43. On or about November 7, 2012, Defendants informed Class Members that theywere unable to complete the promises set forth in their original time line and that the "best

estimate that we can give you, is that it appears that it could be as much as two more weeks

before we can return residents to their homes." Defendants conditioned this statement by telling

Class Members that the time estimate "could, and probably will change, in either direction"

because "things change on a daily basis."

44. Thereafter, Defendants' email communications to Class Members temporarilyhalted and Class Members had no means to obtain accurate information about when they could

return. Many Class Members did not obtain new temporary accommodations because they relied

on Defendants' initial representations and believed that there would only be displaced for two

weeks.

45. Sometime during the week of November 19, 2012, Defendants told ClassMembers that the building would re-open on December 1, 2012. Thereafter, on November 26,


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2012, Class Members were told they could return on November 27, 2012. Later that day, Class

Members were told that could not return until November 28, 2012. On November 28, 2012, at

3:00 p.m., Class Members were told they could not return until November 30, 20120, at 5:00

p.m.

46. Finally, on November 30, 2012, at 4:58 p.m., Defendants told Class Members thatthey could return to the residential apartments at 1 West Street late that afternoon.

47. At that time, and continuing through the present, the commercial tenants havebeen unable to return to the building and operate their business from their own office space.

D. Re-occupancy conditions at 1 West Street

48. Pursuant to New York law, Defendants were not permitted to charge rent for anyday that the building was not habitable. Upon their return to 1 West Street on November 30,

2012, Class Members were told that their November rent payment would be credited to the

month of December. Defendants did not charge Class Members rent for the first two days of

December.

49. On November 30, 2012, Defendants' emailed Residents and told them that if theyreturn to their apartments, they must sign a written statement that expressly states that the

Resident "will remain a tenant at 1 West" and not break their current lease. For those individuals

who refused to sign, Defendants required that all personal property be moved out the following

day and apartment keys returned to Defendants immediately, even before the move out.

50. Defendants ultimatum was especially difficult for Class Members who hadalready provided written notice of a lease termination. By entering 1 West Street on November

30, 2012, and refusing to sign, Class Members had less than twenty-four hours to physically

move out.


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51. Class Members felt pressure to sign the written statement and therefore relinquishtheir prior notice to terminate their leases. Class Members had not been provided time to prepare

for their moves because this was the first notice of such a policy.

52.

Defendants informed Class Members who had previously given notice of lease

termination that "If you decide you want to stay, we would be more than happy for you to do so."

53. When one resident who had given lease termination notice two (2) weeks prior toNovember 30, 2012, objected to the demand for the return of her keys and move out in twenty-

four (24) hours, she received an email from Defendants, which set forth: "[t]echnically you

terminated your lease back to the date of casualty which [sic] in October 28th. We deem[sic]

surrender of your apartment letter and keys."

a. Uninhabitable Conditions at 1 West Street54. Although Defendants declared that 1 West Street was habitable on November 30,

2012, the following conditions were present on that date and continue through the present:

a. Frequent and lengthy power outages, including outages for five (5) hours;b. Persistent loud noise and smell of diesel fuel caused by the generator(s) that

permeates the building;

c. The threat of fire from the generators, and two (2) fires caused by the generators;d. Limited elevator functioning, including use of only two elevators instead of six

elevators;

e. Frequent and repeated instances of Class Members being trapped inmalfunctioning elevators with non-working call and fire buttons in the

elevators;

f. Frequent and repeated instances of Class Members experiencing a free fall anddropping multiple floors in the malfunctioning elevators;


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g. Lack of water safe for consumption;h. Brown water and water filled with sediment;i. Low water pressure and lack of hot water;j.

Loss of heat during power outages;

k. Food spoliation during power outages; andl. Diminished security during the power outages.

55. Since the Class Members returned to 1 West Street, the building has beenpowered by two generators. The diesel fumes from these generators are significant and

permeating throughout 1 West Street. Class Members are concerned for their safety.

56. 1 West Streets elevator operation has been sporadic, unsafe and unreliablebecause the building is now powered by generators. At all relevant times, of the six (6) elevators

at 1 West Street, only two or three elevators have been working. During the first week of

December, the New York Fire Department had to rescue tenants trapped in an elevator.

57. The elevator safety concerns have caused Class Members to file multiplecomplaints to the DOB. One complaint reported that on December 4, 2012, a Resident had

experienced a "free fall" in a 1 West Street elevator and that this was the second time that he had

experienced a "free fall."

58. Many Class Members have been fearful to use the elevators since their return tothe building and continue to fear an accident in the elevator. The New York City Fire

Department has responded multiple times to the Premises.

59. During the power outages, the entrances and doors to 1 West Street are unlocked,allowing anyone to enter the building, and reducing Class Members safety. Further, during the

outages Class Members had to navigate the dark stairwells with flashlights.


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60. Class Members water is regularly brown and contains sediment and is not safe toconsume. The generators power the water pumps for 1 West Street and those pumps have also

failed. When the water pumps fail, sediment builds up in the water tank causing the water to

appear brown, cloudy with pieces of sediment floating in the water. Class Members are reluctant

to drink, bathe or use the brown water for cooking.

61. Defendants did not warn Class Members in advance that the water pumps wouldbe turned off for repairs. Class Members have been unable to receive adequate information from

Defendants about the water quality and assurances that it is safe to drink and use.

62. Numerous Class Members complained to Defendants about the conditions, andexpressed concerns regarding the continued restricted use posting by DOB, the excessive loud

noise and smell from the generator, the quality of the air and water and safety of the elevators.

63. To date, over seven (7) weeks following re-occupancy, most, if not all, of thesame conditions at 1 West Street remain.

64. To date, there have been two fires, both on commercial floors in the building.Defendants failed to notify Class Members about the fire on or about December 26, 2012, until

thirty-one (31) hours after the fire.

65. Despite multiple attempts from Class Members to obtain information aboutrepairs, Defendants continue to fail to provide Class Members with accurate or definitive

answers regarding the status of repairs and when the building will be fully functional.

E. Thirty (30) Day Lease Termination Provision66. Pursuant to the terms of the 1 West Street lease agreement with Class Members,

should the building remain uninhabitable for a period of thirty (30) days, Class Members may

give notice of lease termination and Defendants must return security deposits and pro-rated rents

for the month in which the casualty occurred.


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67. The lease provision reads in relevant part:21. Fire or Casualty: (D) If the Apartment is completely unusable because

of fire, accident or other casualty and it is not repaired in 30 days, You

may give Owner written notice that You end the Lease. If You give that

notice, this Lease is considered ended on the day that the fire, accident or

casualty occurred. Owner will refund Your security deposit and the pro-rate portion of rents paid for the month in which the casualty happened.

68. Some Class Members expressed concern to Defendants that 1 West Street was re-opened to Class Members prematurely and before the building was in fact, safely habitable, for

the purpose of avoiding the terms of 21 (D) of the lease. Defendants have not responded to

Class Members concerns.

69.

Defendants have failed to provide Class Members with documentation that the

water quality has been inspected, and is safe for consumption.

70. The continued use of generators to power the building has caused, and iscontinuing to cause, Plaintiffs and Class Members to suffer additional damages.

CLASS ALLEGATIONS

71.

Plaintiffs bring this Class action pursuant to CPLR 901, on behalf of themselves

and all other similarly situated individuals who were residential and commercial tenants at 1

West Street (i.e. the Premises) from October 29, 2012 to the present.

72. Subject to additional information obtained through further investigation anddiscovery, the foregoing definition of the Class may be expanded or narrowed by amendment or

amended complaint. Excluded from the Class are Defendants and its affiliates, parents,

subsidiaries, employees, officers, agents, and directors; government entities or agencies, its

affiliates, employees, officers, agents, and directors in their governmental capacities; any judicial


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officer presiding over this matter and the members of their immediate families and judicial staff;

and class counsel.

73. This action is properly maintainable as a class action. As provided in CPLR901(a)(1), the proposed Class is so numerous that joinder of all members, whether otherwise

required or permitted, is impracticable.

74. As provided in CPLR 901(a)(2), there are questions of law or fact common tothe Class which predominate over any questions affecting only individual members.

Specifically, the common questions of fact or law include whether Defendants were:

a. negligent with respect to its duty to maintain the property in a reasonably safecondition given Defendants actual and/or constructive notice of the potential

flooding from Sandy;

b. negligent in their evaluation and assessment of potential flood damage exposuregiven the historical information on the location, including past use, zoning

designation, flood plain designation and events of past flooding, including but not

limited to Hurricane Irene;

c. negligent with respect to the design and construction of the premises based uponthe assessment of potential flood exposure;

d. negligent in their implementation, if any, of flood preventive measures throughoutthe premises prior to Sandy on October 29, 2012;

e. negligent with respect to measures taken, if any, to adequately secure the premisesduring the four to five days of actual and/or constructive notice of the impending


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storm from the National Hurricane Center and city officials, and following the

approximate thirty-six hour period subsequent to the Zone A mandatory

evacuation order;

f. negligent in their failure to use sandbags or other flooding barriers across theentrance to the building and the perimeter of the properties;

g. negligent in their failure to properly secure doors and ground level windows priorto Sandy;

h. negligent in their failure to properly secure doors and ground level windows assoon as water began entering the building through the unsecured and/or open

doors and flooding the lobby;

i. negligent in their failure to properly secure and/or leaving completely open, doorsand entrances leading to the basement prior to Sandy;

j. negligent in their failure to create an effective storm preparedness plan, and/orrevise the plan subsequent to Hurricane Irene or in the four to five days following

official warnings;

k. negligent in their failure to properly secure the basement of the building and theoperational, mechanical and electrical equipment located on the premises; and

l.

negligent in their failure to mitigate damages immediately after the Storm; and

m. negligent in their determination that 1 West Street was habitable on November30, 2012, despite the fact that the following conditions were present on that date

and continue through the present:


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i. Frequent and lengthy power outages, including outages for five (5) hours;ii. Persistent loud noise and smell of diesel fuel caused by the generator(s)

that permeates the building;

iii.

The threat of fire from the generators, and two (2) fires caused by the

generators;

iv. Limited elevator functioning, including use of only two elevators insteadof six elevators;

v. Frequent and repeated instances of Class Members being trapped inmalfunctioning elevators with non-working call and fire buttons in the

elevators;

vi. Frequent and repeated instances of Class Members experiencing a freefall and dropping multiple floors in the malfunctioning elevators;

vii. Lack of water safe for consumption;viii. Brown water and water filled with sediment;

ix. Low water pressure and lack of hot water;x. Loss of heat during power outages;

xi. Food spoliation during power outages; andxii. Diminished security during the power outages.

75. As provided in CPLR 901(a)(3), the proposed lead Plaintiffs representativeclaims are typical of those of the proposed Class because the proposed lead Plaintiffs claims are

based upon the same legal theories. The proposed representative partys grievances, like the

proposed Class grievances, all arise out of the same business practices and course of conduct of


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Defendants. Further, Plaintiffs damages arise out of a pattern of nearly identical and repetitive

business practices conducted by the Defendants.

76. As provided by CPLR 901(a)(4), the representative Plaintiff can adequatelyrepresent the Class. No conflict of interest exists between the representatives and the Class

Members or with respect to the claims for relief requested.

77. The representatives and their chosen attorneys are familiar with the subject matterof the lawsuit and have full knowledge of the allegations contained in this complaint so as to be

able to assist in its prosecution. In addition, the representatives attorneys are competent in the

relevant areas of the law and have sufficient experience to vigorously represent the Class.

Furthermore, the resources available to counsel ensure that the litigation will not be hampered by

a lack of financial capacity. Plaintiffs attorneys have sufficient financial resources and are

willing to absorb the costs of the litigation.

78. As provided by CPLR 901(a)(5), a class action is superior to any other availablemethods for adjudicating this controversy. The proposed class action is the surest way to fairly

and expeditiously compensate so large a number of injured persons; to keep the courts from

becoming paralyzed by hundreds, perhaps thousands of repetitive cases, and to reduce

transaction costs so that the injured Class can obtain the most compensation possible, class

treatment presents a superior mechanism for fairly resolving similar issues and claims without

repetitious and wasteful litigation.


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COUNT I

Negligence Prior to Sandys Landfall

(As against all Defendants)

79. Plaintiffs repeat and reallege all preceding paragraphs of this Complaint, as iffully set forth herein.

80. At all relevant times herein, Defendants, the owners of 1 West Street, their agentsand employees, owed a duty of care to the Class Members of 1 West Street to maintain the

property in a reasonably safe condition. The owners of 1 West Street, their agents and

employees, owed a duty of care to the Class Members of 1 West Street to reasonably and

adequately secure the premises from damaging flooding.

81. The owners of 1 West Street, their agents and employees, were on actual and/orconstructive notice of the severity of Sandy four to five days before the storm surges impacted

lower Manhattan.

82. Defendants, and their agents and employees, had the opportunity to inspectexisting flood safeguards, obtain additional methods to adequately secure the perimeter of 1

West Street, and/or take reasonable precautions and/or exercise reasonable care such that the

excessive damage from Sandy at 1 West Street could have been avoided because they were on

notice that the storms impending landfall.

83. Through the fault and the negligence of the owners of 1 West Street, their agentsand employees, Defendants breached their duty to maintain the property in a reasonably safe

condition. Through the fault and negligence of the owners, storm surge water flowed unhindered

into 1 West Street, and into the connecting parking garage, causing extensive damage.

84. As a direct and proximate result of the owners negligence, gross negligenceand/or failures to act, the class and subclass members suffered personal property damages and


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other special damages including, but not limited to, the following: (1) loss of personal property;

(2) diminution of personal property value; (3) loss of income; (4) costs of relocation; (5) loss of

business opportunities and business interruption; and (6) evacuation expenses.

COUNT IINegligence after Sandys Landfall

(As against all Defendants)


86. At all relevant times herein, the owners of 1 West Street, their agents andemployees, owed a duty of care to the Class Members of 1 West Street to maintain the property

in a reasonably safe condition. The owners of 1 West Street, their agents and employees, owed a

duty of care to the Class Members of 1 West Street to reasonably and adequately mitigate the

damages caused by Sandy and properly repair the damages. Through the fault and the negligence

of the owners of 1 West Street, their agents and employees, Defendants breached their duty to

mitigate the damages caused by flooding and restore the real property to a reasonably safe

condition.

87. Defendants have failed to reasonably and adequately restore the real property to areasonably safe condition causing Class Members to experience on a regular basis: (1) Frequent

and lengthy power outages, including outages for 16 hours; (2) Persistent noise and smell of

diesel fuel caused by the generator that permeates the building; (3) Limited elevator functioning,

including use of only one elevator instead of five elevators; (4) Frequent and repeated instances

of Class Members being trapped in malfunctioning elevators; (5) Brown water and water filled

with sediment that is not fit for consumption; (6) Low water pressure and lack of hot water; (7)

Loss of heat during power outages; (8) Diminished security and safety during power outages; (9)


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Food spoliation during power outages; and (10) Loss of intercom system at all times, allowing

visitors to enter the building and have access to all floors unannounced.

88. As a direct and proximate result of the owners negligence, gross negligenceand/or failures to act, the class and subclass members suffered personal property damages and

other special damages including, but not limited to, the following: (1) loss of personal property;

(2) diminution of personal property value; (3) loss of income; (4) costs of relocation; (5) loss of

business opportunities and business interruption; and (6) evacuation expenses.

COUNT III

Breach of Warranty of Habitability, RPL 235-b

(As against Defendant Ocean Premises, LLC)


(a)Breach from October 30, 2012 through November 30, 201290. Defendant 1 West Street impliedly warranted to the Class that the building was fit

for human habitation and further that the Class Members were not subject to any conditions

endangering or detrimental to their life, health or safety.

91. Class Members were prevented from occupying the building from October 30,2012 through November 30, 2012.

92. Defendant 1 West Street breached the implied warranty of habitability bynegligently preparing for the storm surge by Sandy, despite adequate notice, actual and/or

constructive, and by failing to mitigate damages thereafter, such that extensive damage was

caused to the mechanical and electrical systems, conditions so severe that 1 West Street was not

habitable and Class Members continue to experience untenable conditions.


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93. As a direct and proximate result of Defendant 1 West Streets actions, Classmembers have suffered and continue to suffer damages.

(b) Breach from November 30, 2012, through Present

94.

On November 30, 2012, Defendant 1 West Street impliedly warranted to the Class

that the building was fit for human habitation and further that the Class Members were not

subject to any conditions endangering or detrimental to their life, health or safety.

95. On November 30, 2012, 1 West Street was unfit for occupancy and containedconditions materially affecting the health and safety of Class Members, including but not limited

to: (1) Frequent and lengthy power outages, including outages for 16 hours; (2) Persistent noise

and smell of diesel fuel caused by the generator that permeates the building; (3) Limited elevator

functioning, including use of only one elevator instead of five elevators; (4) Frequent and

repeated instances of Class Members being trapped in malfunctioning elevators; (5) Brown water

and water filled with sediment that is not fit for consumption; (6) Low water pressure and lack of

hot water; (7) Loss of heat during power outages; (8) Diminished security and safety during

power outages; (9) Food spoliation during power outages; and (10) Loss of intercom system at

all times, allowing visitors to enter the building and have access to all floors unannounced.

96. Class Members reasonably expected that the essential functions to be provided at1 West Street. As a direct result of Defendants failure to provide and maintain the Premises in a

habitable condition, the health and safety of Class Members has been materially affected.

97. Through the fault and the negligence of the owners of 1 West Street, their agentsand employees, Defendants breached their duty to mitigate the damages caused by flooding and

restore the real property to a reasonably safe condition.

98. As a direct and proximate result of Defendants actions, Class Members havesuffered and continue to suffer damages.


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Documents

1 West Residents vs. Moinian & Elliman