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Supreme Court, New York County
November 26, 2013
Crave Foods Inc. D/B/A CRAVE CEVICHE RESTAURANT, Plaintiff,v.Rapetti Rigging Services Inc., EAST 51st STREET DEVELOPMENT COMPANY, LLC, RELIANCE CONSTRUCTION GROUP, RCG GROUP, INC., JOY CONTRACTORS, NEW YORK CRANE & EQUIPMENT, STROH ENGINEERING SERVICES, P.C., NEW YORK CITY DEPARTMENT OF BUILDINGS, THE CITY OF NEW YORK, JAMES DELAYO, EDWARD MARQUETTE, AND MICHAEL CARBONE, Defendants.
Unpublished Opinion
Daniel Franklin for East 51st Street O'MELVENY & MYERS LLP
Glenn J. Fuerth for New York Crane Wilson, Elser, Moskowitz, Edelman & Dicker
ROBERT D MARTIN for Favelle Favco KRAL, CLERKIN, REDMOND, RYAN, PERRY & VAN ETTEN LLP
RICHARD A HARRIS for Brady Marine LAW OFFICES OF Andrea G. Sawyers
Howard Klar and Cindy Yu for RCG Gallo Vitucci & Klar
DAVID S SMITH for Greater New York Mutual Insurance GWERTZMAN LEFKOWITZ & BURMAN
HARTLEY T BERNSTEIN for Plaintiff Richard Solomon Bernstein Cherney LLP
ROBERT E GODOSKY for Plaintiff John D. LaGreco GODOSKY & GENTILE P.C.
ROBERT C SHEPS for Everest Reinsurance Company SHEPS LAW GROUP, P.C.
Carol Robinson Edmead, J.
In this multi-party litigation, defendant East 51st Street Development Company, LLC ("East 51st Street") moves for partial summary judgment against its co-defendants Reliance Construction Group d/b/a RCG Group, Inc. ("RCG") and Joy Contractors ("Joy") for contractual indemnification.
Factual Background
This action arises from the March 15, 2008 crane collapse accident during the construction of a high-rise building in Manhattan, which caused seven fatalities, serious injuries to many individuals, and multi-million dollars in property damage. The accident allegedly occurred when, during the process of jumping (extending the height of) the crane, the slings supporting the collar and tie-beams broke, causing the collar to fall and the crane to collapse.
In support of its motion for indemnification, East 51st Street, the owner of the construction site, argues that it was merely a passive developer in the construction project and that discovery thus far fails to demonstrate any negligence on its part for the accident. Thus, in light of this Court's previous determination that the indemnification provisions of RCG's and Joy's contracts were triggered, East 51st Street contends that summary judgment is warranted.
According to James Kennelly ("Kennelly"), one of East 51st Street's principals, East 51st Street engaged RCG as construction manager for the project in March 2007 pursuant to an "Early Start Construction Management Agreement" ("ESCMA"). [1]
In July 2007, RCG retained Joy pursuant to a contract for "Excavation, Rock Removal, Sheeting and Shoring, Underpinning, Dewatering, Rock Anchors, Foundation and Rebar Work" (the "Initial Joy Contract") to complete the work previously started but not completed by third-party defendant Civetta Cousins JV LLC (which was hired by East 51st Street's previous construction manager KBF). Although East 51st Street co-signed the Initial Joy Contract, RCG was allegedly responsible for supervising Joy's work at the site.
East 51st Street and RCG then entered into the "Construction Management Agreement" ("Initial CMA") in August 2007 to expand RCG's role at the site.
Thereafter in October 2007, RCG and Joy entered into a "Trade Contract" for Joy to provide labor and supervision necessary to erect the superstructure at the site.
In the Fall of 2007, Joy hired defendant Stroh Engineering Services, P.C. ("Stroh") to draft engineering plans for a tower crane at the site. East 51st Street contends that Stroh designed the tower crane installation such that the base of the crane was to rest on top of steel beams without being secured to those beams or to the ground. In connection with obtaining permits for the crane at the site, Joy and Stroh submitted the plan to RCG, and RCG approved the plan. Stroh also submitted the plans to the New York City Department of Buildings ("DOB"), which approved the plans.
Joy also hired third-party defendant C.S. Mechanical & Equipment Corporation ("CS Mechanical") to fabricate the tie-beams and steel dunnage called for by Stroh's design. The tie-beams secured the crane's tower section to the superstructure and the dunnage was located under the crane and distributed the crane's vertical load to two support walls.
In November 2007, RCG and Joy decided to rent a tower crane from New York Crane, and Joy and New York Crane entered into a Rental Agreement, wherein New York Crane reserved the right to provide an engineer to supervise the erection and dismantling of the crane. [2] New York Crane delivered the crane to the site in January 2008, and set up the equipment for erecting the tower crane. Joy employees then operated and maintained the crane at the site. Joy hired William Rapetti ("Rapetti"), a DOB certified "master rigger" to erect and jump the crane. And, the slings were supplied by Joy at Rapetti's request.
In January 2008, the Initial CMA between East 51st Street and RCG was replaced by a Construction Management Agreement ("CMA"), which enlarged RCG's responsibilities at the site. The CMA required RCG and RCG's subcontractors, to obtain various types of insurance, including commercial general liability and excess insurance. East 51st Street contends that RCG was required to manage and supervise all construction work at the site, and Joy was required to construct the superstructure at the site. Under the CMA and Trade Contract, RCG and Joy were responsible for safety at the site.
In January and February 2008, the crane experienced several malfunctions, which New York Crane employees attempted to repair. In one instance, when New York Crane was unable to repair a computer malfunction, Favelle Favco (the crane's manufacturer) sent an employee to examine the computer issues, who found flaws in the crane's electrical wiring.
The DOB inspected the crane each time it was jumped, including the morning of the accident. [3] The DOB also conducted general safety inspections.
After the accident, the DOB conducted an investigation, which resulted in a report (the "DOB Report") that revealed several causes of the accident, such as sling failure, improper use of the slings, improper welding of tie-beams, and improper rigging.
East 51st Street contends that in one of the many actions resulting from this accident, Della Porta v East 51st St. Dev. Co., LLC (Index No. 104427/2008), this Court ordered that the
the indemnification provisions in the CMA and RCG-JCI [Joy] Agreement have been triggered and RCG and JCI are obligated to indemnify East 51st [Street] for all losses, including defense costs, which arose out of or in connection with the "Work" of RCG, JCI, Stroh Engineering; William Rapetti and Rapetti Rigging, Inc.; C.S. Mechanical & Equipment Corp.; JCI; New York Crane, Favelle[] Favco Cranes (USA), Inc., ... Industrial Sales Company; Con Edison, and the City of New York;....
[However]...partial summary judgment on [East 51st Street's] causes of action against RCG Group, Inc. and Joy Contractors, Inc. for contractual indemnification is denied at this juncture, as premature.
(Order dated October 22, 2010).
The Court held that "in order to obtain summary judgment, East 51st [Street] must establish its freedom from negligence for the underlying accident, which East 51st [Street] failed to do." (Memorandum Decision p. 20).
East 51st Street argues it is not obligated to demonstrate which parties were negligent in order to establish that it was not negligent. East 51st Street need only show that it was not negligent, and discovery has failed to yield any evidence of negligence on its part. East 51st Street, which was operated by Kennelly and its other principal Charles McInnis, merely funded the construction project, played no active role in any construction-related activities, such as in the design of the crane installation or permitting and approval process, and only visited the site occasionally for an hour or two at a time, where they discussed the interior design of the building. Kennelly and McInnis never attended a safety meeting. Instead, East 51st Street retained RCG as construction manager to select, hire, and supervise all subcontractors at the site, and to ensure that all work was performed in a safe manner. East 51st Street also did not purchase, acquire or inspect the slings which broke during the rigging process. East 51st Street did not direct the work at the site, was not involved in the day-to-day activities at the site, did not hire or supervise any of the subcontractors at the site, and did not "jump" the crane. Neither Kennelly nor McInnis had the required DOB licenses to supervise any of the work relating to the crane at the site. East 51st Street was not consulted with when New York Crane hired Rapetti. East 51st Street contends that it had no role in the repairing of the crane's malfunctions. East 51st Street also points out that the DOB Report did not indicate any evidence that East 51st Street was negligent.
East 51st Street also contends that it was never notified of any safety issues at the site or of the crane, superstructure, equipment or materials. Further, any questions of fact related to East 51st Street's occasional participation in planning meetings where the installation of the ConEd vault and location of the crane were discussed, and its authority to reject subcontractors selected by RCG, is insufficient to defeat summary judgment. The decisions regarding the installation of the ConEd vault and location of the crane were made by RCG and Joy, not East 51st Street, and all of such decisions were approved the DOB. And, whether East 51st Street could reject RCG's subcontractors is irrelevant in light of this Court's previous determination that East 51st Street is entitled to indemnification if evidence demonstrated it was not negligent. In any case, there is no evidence that East 51st Street rejected any of RCG's subcontractors.
Therefore, argues East 51st Street, under caselaw, and in light of the above discovery and this Court's previous determination, East 51st Street is entitled to partial summary judgment on its contractual indemnification claims against RCG and Joy. [4]
RCG opposes the motion, arguing that even assuming the effectiveness of the CMA (which did not reflect the true agreement of the parties), the record demonstrates that East 51st Street retained and exercised extensive, active supervision and control over the project, including the day-to-day construction and design of and location of the tower crane. Further, there are various theories on why and how the crane collapsed, such as defects in the crane, defects in the straps and other accessories, improper design of the crane, and improper location of the crane. Thus, issues exist as to whether East 51st Street was negligent and whether such negligence was a proximate cause of the accident.
Under the CMA, East 51st Street retained oversight and final approval of materials and supplies, final authority for all major decisions and all testing and inspection on the project, and final authority to accept or reject all work on the project. East 51st Street's principals maintained an office and were present at the site daily, videotaped work on the project, issued directives regarding certain construction issues, required that all issues be brought up to Kennelly for final decision and approval, issued safety directions to workers, and attended numerous design and construction meetings. East 51st Street also made the final decision regarding the crane's base design and placement above the ConEd vault, which Stroh and Rapetti, in their many years of working together, found unusual. And, East 51st Street directed the parties at the site to continue to use the crane, notwithstanding its knowledge of the numerous defects and problems with the crane, its design, and its accessories. East 51st Street's active role in the project precludes summary judgment in its favor.
Further, under the special use doctrine, East 51st Street derived a benefit from the tower crane's placement on the public sidewalk and of the installation of the ConEd vault, and thus, had a duty to maintain the tower crane and its components in a reasonably safe condition. East 51st Street's breach of this duty constitutes negligence.
And, the self-serving affidavit of Kennelly and inadmissible documents are insufficient to support East 51st Street's motion. More than half of East 51st Street's submissions consists of unsworn letters, emails, reports, or documents produced by other parties and there is no foundation for these documents' admissibility. And, none of the admissible deposition testimonies was cited to support the claim of East 51st Street's nonliability. [5]
Plaintiff LaGreco seeks leave to intervene in order to oppose East 51st Street's motion. LaGreco contends that the agreements between East 51st Street and RCG were entered into for the sole purpose of securing financing for the project from potential lenders, and the lack of adequate financing created a serious risk for work progress and safety. That Kennelly and McInnis were not licensed is irrelevant. Further, that East 51st Street cannot identify the cause of the accident is sufficient to deny the motion, and Stroh's deposition testimony referencing East 51st Street's involvement in the crane's placement and its base design is sufficient, alone, to raise an issue of fact. Thus, the Court should search the record, find that East 51st Street was negligent as a matter of law, and grant summary judgment against East 51st Street. [6]
New York Crane does not oppose East 51st Street's request for relief against RCG and Joy, but takes issue with East 51st Street's suggestion that the crane's tower sections or computer caused the accident. New York Crane cites to various parts of the record to show that the crane was fully operational without any complaints for months before the accident, and that there were no computer issues or wire defects at the time of the accident. New York Crane also points out that East 51st Street failed to submit an affidavit from its engineering expert, Alyn Kilsheimer, who inspected the large and small crane parts.
Favelle Favco also does not oppose East 51st Street's request for relief against RCG and Joy, but seeks to correct inferences and assertions made about the wiring Favelle Favco found upon its inspection and the welding repairs made to 11 tower sections. The "wrong wiring" Favelle Favco found was due to incorrectly mated wires (the wiring had to be switched from "B" to "A"), and was corrected. Brady Marine completed its repairs to the 11 tower sections on July 17, 2007, and there is nothing to indicate that any of the "routine" weld repairs by Brady Marine failed or caused the accident. The record shows that the welding work was irrelevant because the towers were "all fine" and "nothing happened to the towers." Further, the record demonstrated that there was no problem with the operation of the crane following the first day of operation of the crane after servicing the crane on February 16th, until the date of the accident.
Brady Marine joins Favelle Favco, and adds that Rapetti testified that there were no sharp edges on the tower portions being used on the date of the accident.
In reply to RCG, East 51st Street argues that the purported facts stated by RCG are not based on the record, are misrepresentations, and are insufficient to raise an issue of fact as to East 51st Street's freedom from negligence. East 51st Street alleged supervisory power over Joy's work and alleged authority to stop work at the site are insufficient to raise an issue of fact as to East 51st Street's freedom from negligence, especially since RCG retained such authority and controlled access to the site. East 51st Street did not have notice of a dangerous condition and thus, was not negligent in failing to mitigate a potential danger, since the DOB and RCG approved the design and installation of the crane, which according to Stroh, was not "a hazard." And, since New York Crane and Favelle Favco repaired the previous defects in the crane, and there was no continuing defect in the crane, its removal from the site was unwarranted. Also, the caselaw cited by RCG is distinguishable in that East 51st Street was not required to identify unsafe conditions at the site, did not set up safety practices at the site, and merely retained inspection and supervision privileges, which is insufficient to impose liability. All of the cases RCG cites in support of the narrowly applied "special use" doctrine involved injuries received on public streets or sidewalks, and thus, are inapplicable since no party herein claims it was injured under similar circumstances. Nor is there any evidence that the crane was placed over a public sidewalk. The cause of the accident need not be determined in order to grant East 51st Street indemnification, and RCG points to no outstanding discovery that is needed to determine East 51st Street's freedom of negligence. And, the documents East 51st Street submitted, which were attached to an attorneys' affidavit, are admissible, and the caselaw cited by RCG on this issue are inapplicable as they involved the submission of expert reports which must be sworn or affirmed to be admissible. Nor is the DOB Report hearsay, because East 51st Street does not cite it to prove the truth of the matters asserted within the Report, but for the proposition that DOB conducted an investigation to determine the cause of accident and detailed its findings and conclusions in the Report.
Also, the partial opposition papers submitted by New York Crane, Brady Marine, and Favelle Favco provide no basis to deny summary judgment, as they take no position on the validity of East 51st Street's motion. And, because East 51st Street has moved solely against RCG and Joy, the Court's ruling herein will not have a preclusive effect on any party that has not opposed the motion.
In a separate reply (improperly denominated as a "sur-reply" filed on November 4, 2013), East 51st Street argues that the caselaw LeGreco cites fails to support its position. East 51st Street's retention of general supervisory authority over RCG at the site under the CMA is insufficient, under caselaw, to demonstrate East 51st Street's negligence. Also, East 51st Street's alleged activities at the site, i.e., the decision of the crane placement and its base design, and attendance at meetings, and participation in RCG's contractual negotiations with subcontractors, have no connection to the accident. There is no evidence that the crane's location or base design contributed to the accident. Also, East 51st Street's negligence cannot be determined based on the level of financing it was able to secure. And, that East 51st Street's principals were not permitted to visit the site after hours without RCG present shows that it was not negligent. LaGreco failed to cite to any facts in the record to defeat summary judgment, and fails to identify any discovery that could shed further light on East 51st Street's negligence.
And, the special use doctrine does not apply because the crane was not on a public sidewalk and no party claims that it was injured on a public street or sidewalk adjoining the site. In any event, Joy was responsible for maintaining the crane and the site, and assuming East 51st Street had such a duty, there is no evidence that East 51st Street breached the duty to maintain the crane.
East 51st Street is entitled to rely on the affidavit of its principal, and cited to numerous documents and depositions.
Furthermore, the Court should not grant leave for non-parties to intervene to oppose East 51st Street's motion. Everest, Greater New York, LaGreco, and Solomon (the "non-parties") have not provided any legal or factual basis to support intervention. The instant motion has no bearing on any party except RCG and Joy, and the Court decision will not have a preclusive effect on the non-parties.
As the proponent of the motion for summary judgment, East 51st Street must establish its cause of action against RCG and Joy sufficiently to warrant the court directing judgment in its favor as a matter of law in (see CPLR §3212 [b]; VisionChina Media Inc. v Shareholder Representative Services, LLC, 109 A.D.3d 49, 967 N.Y.S.2d 338 [1st Dept 2013]; Ryan v Trustees of Columbia University in City of New York, Inc., 96 A.D.3d 551, 947 N.Y.S.2d 85 [1st Dept 2012]). This standard requires that East 51st Street make a prima facie showing of entitlement to judgment as a matter of law, by advancing sufficient "evidentiary proof in admissible form" to demonstrate the absence of any material issues of fact (see People ex rel. Cuomo v Greenberg, 95 A.D.3d 474, 946 N.Y.S.2d 1 [1st Dept 2012]; Madeline D'Anthony Enterprises, Inc. v Sokolowsky, 101 A.D.3d 606, 957 N.Y.S.2d 88 [1st Dept 2012], citing Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] and Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]). Thus, the motion must be supported "by affidavit [from a person having knowledge of the facts], by a copy of the pleadings and by other available proof, such as depositions" (CPLR § 3212 [b]).
Alternatively, to defeat a motion for summary judgment, the opposing party must show facts sufficient to require a trial of any material issue of fact (CPLR §3212[b]). Thus, where the proponent of the motion makes a prima facie showing of entitlement to summary judgment, the burden shifts to the party opposing the motion to demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action (Wing Wong Realty Corp. v Flintlock Const. Services, LLC, 95 A.D.3d 709, 945 N.Y.S.2d 62 [1st Dept 2012] citing Alvarez v Prospect Hosp., 68 N.Y.2d 320, 501 N.E.2d 572 [1986]; Ostrov v Rozbruch, 91 A.D.3d 147, 936 N.Y.S.2d 31
[1st Dept 2012]). Like the proponent of the motion, the party opposing the motion must set forth evidentiary proof in admissible form in support of his or her claim that material triable issues of fact exist (Zuckerman at 562; IDX Capital, LLC v Phoenix Partners Group, 83 A.D.3d 569, 922 N.Y.S.2d 304 [1st Dept 2011]).
At the outset, "the affidavit or affirmation of an attorney, even if he has no personal knowledge of the facts, may serve as the vehicle for the submission of acceptable attachments which do provide "evidentiary proof in admissible form, " e.g., documents, transcripts (Furlender v Sichenzia Ross Friedman Ference LLP, 79 A.D.3d 470, 912 N.Y.S.2d 204 [1st Dept 2010] (granting summary judgment pursuant to CPLR 3211(a)(1) (documentary evidence) based on authenticated documents submitted through the affidavit of defendant's attorney "even though the attorney had no first-hand knowledge of the underlying facts")). Except for the DOB Report, all of the documents submitted by East 51st Street were authenticated either at a deposition or with an affidavit by a witness with personal knowledge of the facts contained in the document. [7]
It is noted that East 51st Street initially submitted the DOB Report to show that it was not identified as having any part in the cause of the accident, and in order to draw such a reference, East 51st Street must rely on the "truth" of the statements contained in the DOB Report, i.e., that the accident was caused by other parties. Further, as previously stated by the Court, the DOB Report, which contains numerous hearsay statements from numerous interviews conducted, was not authenticated. Thus, it cannot be considered in support of East 51st Street's motion. While this Court previously held that records of the DOB, upon a proper foundation and if properly authenticated, may be admissible under the business records exception to the hearsay rule, here, East 51st Street failed to establish any exception to the hearsay rule (See January 17, 2012 Memorandum Decision, p. 16). However, since the substantial documentation and deposition testimonies submitted by East 51st Street are admissible, it cannot be said that East 51st Street's motion is unsupported by evidentiary material. Nor can it be said that the affidavit of Kennelly is self-serving, as it does not directly contradict his deposition testimony (Capuano v Tishman Const. Corp., 98 A.D.3d 848, 950 N.Y.S.2d 517 [1st Dept 2012] (an affidavit that does not contradict one's prior deposition testimony and "provides additional details illuminating" such testimony is not self-serving); cf. Slates v New York City Housing Auth., 79 A.D.3d 435, 914 N.Y.S.2d 12 [1st Dept 2010] (holding that affidavit of plaintiff's son that directly contradicted deposition testimony of plaintiff was self-serving, and should have been disregarded)).
As East 51st Street points out, this Court previously stated that the indemnification provisions of the CMA and Trade Contract (previously referred to as the RCG-Joy Agreement) (Memorandum Decision, p. 12) are valid and enforceable, and thus, as the movant for contractual indemnification, East 51st Street must establish its freedom from negligence in relation to the crane collapse accident (Cook v Consolidated Edison Co. of NY, Inc., 51 A.D.3d 447, 859 N.Y.S.2d 117 [1st Dept 2008] (affirming denial of owner's summary judgment on contractual indemnification claim against tenant where issues of fact existed concerning owner's negligence)). [8] Liability for a construction accident that arose "out of the means and methods of the work, as opposed to a dangerous condition on the site" based on "common law negligence may be imposed where the defendant exercised control or supervision over the work and had actual or constructive notice of the purportedly unsafe condition'" (Alonzo v Safe Harbors of the Hudson Housing Development Fund Co., Inc., 104 A.D.3d 446, 961 N.Y.S.2d 91 [1st Dept 2013]).
East 51st Street established that under the CMA, RCG bore significant responsibility for managing all aspects of construction at the site to complete the project, including providing all supervision, "labor, material, equipment and supplies, " and administrative services, which naturally included the procurement of the tower crane and all of the accessories and labor necessary for its operation (Article II, "Scope of the Work, " 2.01). RCG was also responsible, under the CMA, to maintain the site in "a safe and orderly fashion, " and to ensure that it and its subcontractors complied with all safety "protection measures" at the site, including conducting inspections (CMA, ¶7.02(u)-(v)). And, in this connection, RCG engaged two site safety managers, superintendent (John Orsino) and the assistant superintendent (Michael Esposito), and, according to Joseph Martino (of Joy) a site safety manager from RCG was present "on the site every day" (Steenson EBT, pp. 82-83; Martino EBT, p. 168). RCG also engaged CRSG to provide "job safety set up and Site Safety Plan... and to identify deficiencies... and report said deficiencies to" RCG. (CRSG Proposal). Joy was also required to provide its own independent certified site safety manager for its work (Steenson EBT, p. 82). RCG engaged Joy pursuant to the Trade Contract for Joy to provide labor and supervision services concerning the superstructure (Trade Contract, ¶ 2.1, "Contractor shall furnish all labor, competent supervision, materials, scaffolding, ladders, tools, equipment, supplies and all required permits for JCI's equipment and approvals, and incidental material, etc., necessary or prosecution and completion of all work and related work...."). Joy advised RCG that a tower crane for the project was going to be used, and Joy engaged Stroh to design the tower crane configuration (Steenson EBT, pp. 90-92; Stroh EBT, pp. 591-593). Joy then rented the tower crane from New York Crane (Rental Agreement, dated November 29, 2007; Martino EBT, p. 28). Joy engaged CSM to fabricate the tie-beams and steel dunnage, and Rapetti to jump the crane (Martino EBT, pp. 28-29, 405, 462).
Further, East 51st Street demonstrated that Kennelly and McInnis only held an assistant broker license, and a broker's license, respectively, and did not have the engineering or other licenses necessary to undertake the obligation to perform the wide-ranging scope of duties delegated to the other entities (Kennelly, EBT, p. 373; McInnis EBT, p. 22). According to Kennelly, as "developers, [they did not] make any decision. [They] hire experts... and [] hope they do their job[s]" (Kennelly EBT, 174). Other than the construction meetings led by RCG, Kennelly participated in design meetings to discuss interior finishes (Kennelly EBT, pp. 162, 223). Kennelly did not know if there were safety meetings held at the site (id., pp. 223). Kennelly and McInnis never spent a full day at the site, but just observed the progress of the project and were not involved in the supervision of the subcontractors at the site (Kennelly EBT, pp. 228, 334-335, 711). And, to supplement the record, Kennelly's affidavit indicates that "East 51st Street did not direct or supervise any of the work at the Site, did not supply any of the tools or equipment at the Site, " played no role in designing, manufacturing, repairing, maintaining, operating, installing the crane, or in obtaining DOB's approval of the crane installation design. Kennelly attests that "East 51st Street did not make the decisions regarding the installation of the ConEd vault and the location of the [c]rane... did not purchase or acquire the slings that were used to jump the [c]rane... [and] was not responsible for inspecting the slings or for supervising the jumping process."
By virtue of the above, East 51st Street demonstrated that it was not negligent or otherwise responsible for the crane collapse accident.
However, the opponents and non-parties (by adoption) raised an issue of fact as to whether East 51st Street bore responsibility for the crane's design, installation and operation.
First, as to intervention, CPLR § 1013 provides that a court may grant leave to intervene if the proposed intervenor's claim and the main action "have a common question of law or fact" (American Home Assur. Co. v Port Authority of New York and New Jersey, Slip Copy, 40 Misc.3d 1236(A) [Supreme Court, New York County 2013]). "If this threshold requirement is met, the court then may exercise its discretion in determining whether to grant intervention" (American Home Assur. Co., supra, citing Vincent C. Alexander, Practice Commentaries, McKinney's Cons.Laws of NY, Book 7B C1013). "Intervention is liberally allowed..., permitting persons to intervene in actions where they have a bona fide interest in an issue involved in that action" (Schron v Grunstein, 41 Misc.3d 1207(A), Slip Copy [Supreme Court, New York County 2013] citing Yuppie Puppy Pet Prods., Inc. v Street Smart Realty, LLC, 77 A.D.3d 197, 201 [1st Dept 2010]). Here, the moving intervenors LaGreco and Solomon, and, Everest and Greater New York (which did not expressly seek leave to intervene), have a considerable, good faith basis to intervene, as they have direct negligence-based claims against East 51st Street, and, even if not collaterally estopped, would suffer adverse consequences by a decision herein concerning East 51st Street's negligence. Should the Court agree that East 51st Street was not negligent in the happening of the crane collapse accident, such a finding would have an adverse impact on the litigation of the negligence-based claims by such parties. Therefore, intervention by such parties in order to address East 51st Street's application herein is warranted. [9]
The Court need not determine, as a matter of law, the exact proximate cause or causes of the accident in order to determine whether East 51st Street was not negligent and thus entitled to contractual indemnification (see Zarem v City of New York, 6 A.D.3d 276, 774 N.Y.S.2d 695 [1st Dept 2004] (While questions of fact exist as to whether Shelter Express was negligent and whether any such negligence caused plaintiff's injury, Infinity Outdoor was entitled to contractual indemnification in the absence of evidence that plaintiff's accident was attributable to negligence on Infinity's part"), as helpful as that may be. Nonetheless, it is sufficient that a showing has been made that issues of fact remain as to East 51st Street's exercise of control over several aspects of the project which bear on the ultimate issue of liability for the crane collapse accident.
It is noted that daily presence at the site, instructions on what work was required, and retention of the right to stop work for safety reasons is insufficient; control over "how" the work was to be performed is critical to liability for negligence (see Foley v Consolidated Edison Co. of New York, Inc., 84 A.D.3d 476, 923 N.Y.S.2d 57 [1st Dept 2011] (finding that although Con Edison "directed Roadway crews to excavate certain sites, " was "always on site, " "admonished Roadway employees to hurry the work, " and "had the authority to stop work for safety reasons" Con Edison provided nothing "more than general instructions on what needed to be done, not how to do it, and monitoring and oversight of the timing and quality of the work is not enough to impose liability" and thus, such actions were "insufficient to raise a triable issue of fact with respect to whether it exercised the requisite degree of supervision and control over the work being performed to sustain a claim... common-law negligence")). [10]
Notwithstanding East 51st Street's contentions to the contrary, the record indicates that two of the alleged factors that allegedly caused the crane to collapse was the location of the crane, and/or the crane base design. Therefore, as issues of fact exist as to whether East 51st Street was responsible for the decision to use, and continued use of the tower crane and its design and placement at the project site, summary judgment is unwarranted.
Stroh testified that East 51st Street was involved with the installation of the crane (EBT, p. 32), and that Stroh spoke with Kennelly about two options in designing the installation of the crane: to put the crane in a "free-standing foundation for the crane to support the loads" or "put the crane in over the vault and connect it to the building, which is the scenario we went with" (EBT, p. 318). East 51st Street was also involved in discussions about the placement of the base of the crane (EBT, p. 88), and worked with the engineer and architect in changing the design of building (EBT, p. 613). Stroh had to change the crane installation drawings "to comply with the new design drawings for the building" (EBT, pp. 613-614). Stroh testified that the majority of the tower crane installations he designed were for free-standing cranes where the foundation was anchored to the rock or into a poured concrete foundation (EBT, p. 80). When asked if any of them ever fell or tipped over, or if there was ever a danger of the base of those frames sliding out or shifting, Stroh replied "No, " "[b]ecause we design that not to happen" (EBT, pp. 80-81). Stroh then opined that such a free-standing crane design would have better served the subject project because they "would have been able to utilize the tower crane from the very beginning of the superstructure phase...." (EBT, pp. 186-187). East 51st Street and the "contractors" decided to install the vault and install the crane over the vault (EBT, p. 195). Mr. Stroh stated that if the ConEd vault had not been installed prior to the installation of the crane, he could have "extended the mat foundation of the building out into the sidewalk area and then used that to create a free-standing base for the tower" with "starter legs... embedded in concrete" (EBT, p. 684).
Martino (of Joy) also indicated that Kennelly was involved in the decision to place the crane over the ConEd vault installed into the sidewalk (EBT, pp. 143;101-102;119-120). Martino also discussed the placement or location of the tower crane with McInnis or Kennelly (EBT, p. 265). Martino testified that he and Stroh preferred using a conventional crane pad as the base "Because it's been tested and proven. It's used 90 percent of the time" (EBT, p. 99). And, according to Martino, the crane base was going to be set in a conventional manner, i.e., anchored to a concrete pad, but he "was prohibited from doing that by the construction manager and the developer" "Kennelly" because East 51st Street wanted to put the ConEd vaults in the ground; "[t]hey felt that they would lose too much time... " (EBT, pp. 97-98) and wanted to "expedite getting service into the building" and obtain a temporary Certificate of Occupancy sooner (EBT, p. 102).
Therefore, the record supports the contention that East 51st Street actively participated in the decision regarding the tower crane's design, installation of the ConEd vault, and the location of the crane, sufficient to raise a question of fact as to East 51st's Street's negligence. [11]
However, upon a search the record at plaintiff LaGreco's request, the Court declines to find that East 51st Street was negligent as a matter of law. Many issues of fact concerning East 51st Street's involvement in the decision concerning the crane base design and installation and installation of the ConEd vault, and the proximate causal relation of such decisions to the crane collapse accident, preclude a finding of negligence as a matter of law.
Based on the forgoing, it is hereby
ORDERED that the motion by East 51st Street for partial summary judgment against its co-defendants Reliance Construction Group d/b/a RCG Group, Inc. and Joy Contractors for contractual indemnification is denied; and it is further
ORDERED the application by John D. LaGreco (plaintiff under Index No. 107527/2008) for summary judgment finding that East 51st Street was negligent as a matter of law, is denied; and it is further
ORDERED that East 51st Street shall serve a copy of this order with notice of entry upon all parties within 20 days of entry.
This constitutes the decision and order of the Court.
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Rescue date 10/5/16 My name is Missy. My owner had to go into an assisted living home so unfortunately I need a new home too. I came with Rusty. I'm well behaved. My adoption fee is $125 which includes the spay, microchip (transfer of registration into your name $20), up to date vaccines, teeth cleaning and grooming. We are located in the High Desert, Phelan, next to Victorville and Hesperia.
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Discussion in 'iPod touch Firmware 2.X Jailbreak' started by cometobuy, Sep 8, 2008.
how can i change "Slide to unlock" to something else ?
You have to install Customize off Cydia, and in the app, the setting is under Edit System Strings
or you can modigy the file yourself if you dont want to use customize (it doesnt work well at all...)
Yeah, I only use Customize for this purpose, I use WinderBoard for all the other stuff until they update Customize.
Jack, how do you modify it yourself without Customize? I'd like to know...thanks
Yeah, install Customize and go to System Strings.
There are all System Strings and you can write there what you want.Please Register or Log in to view images
Please Register or Log in to view images
wow your funny theres no need to post the same thing someone else just posted n00bPlease Register or Log in to view images u should prolly just stop
goto /System/Library/CoreServices/SpringBoard.app/English.lproj/SpringBoard.strings and copy that file over to your computer.
convert it by going to this website http://126.96.36.199/~khchung/cgi-bin/plutil.cgi or just tpye convert plist to text into google and its the link which starts with 220.127.116.11
when the file is converted (takes like 3 seconds) save it to your computer. open it with notepad. press ctrl+f (i think) to bring up the find thingy. type in slide to unlock. press search and it will find it. then just change the text to whatever you want. press search again and search for slide to unlock again coz i think there may be another one you have to change i cant remember. if thats it and your done. save the file as its original name, SpringBoard.strings and ssh it back into /System/Library/CoreServices/SpringBoard.app/English.lproj/ making a backup of the original file just in case (you can do this by just renaming the old one to SpringBoard.strings.backup
respring and your done.
Sweet!! thanks jack
no problem. this is how i did mine before customize...
Separate names with a comma.


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Windows 8 Pro Theme
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by: droidkingz2 • 12
★This is a custom full blown theme for Windows 8. You can replace this home application with the default one and access everything on your phone through Windows 8 for Android.
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An irate avian forced the total evacuation of a supermarket in Cornwall on Tuesday evening as shoppers looked on in horror.
The angry seagull swooped into the Tesco store in Garras Wharf, Truro at around 8:30pm and began harassing customers and staff.
One employee told SWNS: "I was unaware of its presence until it nearly flew into my head."
Another customer was reportedly hit in the face by the seagull as it entered the shop.
The store was eventually forced to close for 75 minutes as staff attempted to apprehend the angry bird, leaving more than 50 people unable to purchase their groceries.
The gull was eventually captured and safely released outside after taunting workers from atop a pack of IAMS cat food.
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79 Una Road Bucketty NSW 2250
+ Wed, 14th Dec 11:30AM – 12:30PM Email Agent
Reach for the Stars79 Una Road, Bucketty
With bush views as far as the eye can see, it feels like the middle of nowhere, but it's central to everything - about 50 minutes to Wahroonga and 40 minutes to Gosford CBD, Tuggerah Westfield and Cessnock and 20 to historic Wollombi - gateway to the Hunter Valley wineries.
A hidden gem on the old Convict Trail between Sydney and Newcastle, â??Hidden Valleyâ?? offers the peace and quiet of a no-through-road, surrounded by wildlife such as kangaroos, wallabies, wombats, echidnas and birdlife.
At the same time, it offers the perfect place for the kids or extended families, with locations for quad bike or motorbike riding and caves and bush to explore.
Located less than 15 minutes to Laguna Public School, the property is also 20 minutes from Wollombi's wineries and markets.
The home features two bedrooms plus a study, a salt-water above-ground swimming pool, solar hot water, a brand new septic system, a garage, and a massive 20x9m powered shed on a concrete slab, ideal for the car enthusiast, storage, machinery shed, home business, etc.
There is Optus mobile, wireless internet reception, and free-to-air television.
To reserve your spot on the top of the world, please call Ray Armstrong on 0412 621 147.
Inspection Times
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Is this an European restaurant?
Is this restaurant good for lunch?
Is this restaurant good for breakfast?
Does this restaurant offer takeout or food to go?
Does this restaurant offer free wifi?
Does this restaurant offer delivery?
Does this restaurant offer outdoor seating?
Does this restaurant offer highchairs for toddlers?
Is this restaurant good for bar scene?
Is this restaurant good for local cuisine?
Thanks for helping!
3 Days in Madrid
Living Madrid
Do This in Madrid, Again and Again
the paelle was good, the staff was friendly but the place is more expensive than it should be. i think there are better places to eat in madrid
We asked our concierge at Hotel Emperador where to go for the best paella and this place was recommended.
I thoroughly recommend Paella Real for the most delicious, authentic paella we had in Spain.
When walking in, the restaurant looks very expensive but totally the opposite. Don't be fooled by the beautiful napery and silver cutlery...the food is very reasonably...
Four of us decided late in the afternoon on Paella so we made our way here at about 3:30. We decided, and the waiter also recommended, on the seafood Paella. First there were 4 tapas, which were great and the highlight of the meal. Then the Paella, which was fine, but a bit overdone. We were the last people to...
This restaurant has been mentioned on the guide "Lonely Planet"...at this point, considering our experience tonight, I can only assume they paid someone to be mentioned there.
The place looked promising, hidden in a quiet street, away from the very busy turist traps. We got a table, and when the waiter came to take our order, I asked more information...
We selected this restaurant based on a recommendation from our tour guide. The paella was made fresh and was very tasty. We were limited though to only 2 choices even though there were 6 of us. We selected paella with chicken and vegetables and then paella with shellfish. The servings were very large. The bill was 162 euros and that...
The restaurant is very romantic and paella very delicious but you can also eat other fish : squid, shrimp, lobster etc.
Furthermore is very near from the centre of the city.
This was my first time having paella. It was good. The portions were big. I forgot what we paid, but I remember it was high. The service was good, we went at a time when there was hardly anyone there. I remember being confused about whether or not the place was open or not. It was awfully quiet in there....
Came here for dinner on our honeymoon. Paella was frozen, prawns and lobster not fresh, but rice was ok (edible). Tapas of grilled squid was nice, gazpacho lacked flavour. They bring out bread before the meal and I asked for water. Came to the bill to see that we had been charged for the bread and water!! They don't speak...
Monday, we came here because we heard they had a good paella. It was two adults and two children with one stroller for lunch. We had the grilled squids in olive oil and lemon. The dish was awesome, they were perfectly cooked and seasoned. We then had the mixed paella for two and shared with the boys. The paella came...
Difficult to find, small restaurant. Paella was oke but not exceptional. Service a little bit surly. Price above average.
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January 18, 1949
IN RE CLARK SUPPLY CO., INC. TODD BLDG. CORPORATIONv.HELLER.
Before KERNER and SPARKS, Circuit Judges, and LINDLEY, District Judge.
KERNER, Circuit Judge.
The Todd Building Corporation appeals from an order of the District Court confirming an order of the Referee in Bankruptcy directing it to turn over all property in its possession to the trustee in bankruptcy of the Clark Supply Company, Inc. The order amends title to the bankruptcy proceedings to include the Todd Corporation, orders creditors of Todd to file their claims with the referee, and orders E. H. Clark and B. E. Clark as individuals and as officers of Todd to file schedules of the assets and liabilities of Todd.
The Clark Supply Company, Inc., was adjudicated a bankrupt, and Albert C. Heller was appointed and qualified to act as receiver, and thereafter he was elected as trustee. On May 13, 1947, Heller filed his petition against Clark Climate Control Company, Buda Sales and Service, Inc., and Todd Building Corporation, referred to hereinafter respectively as Control Company, Buda, and Todd, and also against E. H. Clark and B. E. Clark, as officers of those corporations and as individuals, in which he alleged that the Supply Company was one of several commingled and affiliated corporations having the same stockholders and officers; that the assets of the Supply Company had been transferred without consideration to its affiliates, Todd, Control Company, and Buda; and that their affairs were little more than corporate pockets for it. The petition prayed for a restraining order and injunction against the corporate respondents, and against E. H. Clark and B. E. Clark individually, from transferring any assets derived from the bankrupt. The referee issued a restraining order and directed Control Company, Buda, Todd, and E. H. Clark and B. E. Clark, individually and as officers of the corporate respondents, to show cause why the injunction should not be granted. Due service of that order was made upon all respondents. The corporate respondents appeared, but E. H. Clark and B. E. Clark made no appearance in these proceedings. On its voluntary petition Buda was adjudicated bankrupt on June 25, 1947. It was thereafter represented in these proceedings by its duly elected trustee. Todd moved to dissolve the restraining order for lack of jurisdiction, which was denied, and affidavits of traverse to the petition were filed.
While the trial under the order to show cause was limited to injunctive relief, it was understood by all parties, and was so stated by the referee at the outset, that the issue in question was whether the assets of Todd were to be considered, treated and dealt with as the assets of the bankrupt and marshalled by the trustee for the benefit of the creditors of the bankrupt estate. Hearings were had on the issue, before Becker, Referee, which culminated in findings of ultimate facts and conclusions of law by the referee, and which in substance are as follows:
E. H. Clark and B. E. Clark up to December 31, 1945, did business as partners under the name of Clark Supply Company, at which time the partnership was incorporated pursuant to the laws of Wisconsin under the name of Clark Supply Company, Inc. The partnership had several divisions. Among them were Clark Manufacturing Company, E. H. Clark and Associates, Buda Sales & Service, Inc., and Clark Electric Service.Each of these divisions carried on activities which were distinct in character. There were many products and services required in several divisions which were furnished by the others. Each came into being through the promotion, development and financial assistance of the partnership. No segregation was made of the assets or income of these divisions. One set of books was maintained, and all expenses and liabilities incurred were obligations of the partnership.
In August, 1945, the partnership acquired property at 1326-36 West Clybourn Street, Milwaukee, with the expenditure of partnership funds of $44,844.86 and by the assumption of an outstanding mortgage of $46,000. It also acquired land at 233 East Keefe Avenue, Milwaukee, for $15,000.These two parcels were carried on the books of the partnership at a cost value of $59,844.86.
At the beginning of the year 1945 the investment account of the partners with the partnership stood at the sum of $179,466.18. During that year the partners personally withdrew from the partnership $293.346.52, which was more than twice the net earnings of the partnership during that year. This left the partnership with no working capital.The partners did not contemplate closing or terminating any part of their business operations.
These withdrawals from the partnership were made by the Clarks as part of a plan. The general details and objectives of this plan were to terminate the partnership as a medium for the operation of the enterprises; to end the partners' personal liability to the then existing creditors of the partnership; and to form a number of corporations to be fully owned by them and their families and dominated and controlled by them with no other assets than those derived from the partnership. Some of these contemplated corporations were to assume and pay all of the obligations and debts of the partnership and were to carry on the potentially losing divisions of the partnership with little or no working capital. Other contemplated corporations were to receive the valuable property of the partnership at cost of the physical property and were to continue the potentially profitable divisions of the partnership, thereby placing such property, contracts, franchises and profitable business beyond the reach of creditors of the partnership and those who would become creditors of the corporate successors of the partnership while such corporate successors carried out the assigned task of paying the debts of the partnership and served as a credit facility of the favored corporate entities, all of which was to be done with the ultimate objective of preserving diverted assets for the benefit of the Clarks and their families.
In the latter part of 1945 the formulation of the plan had progressed to a point where paid consultants were retained to put the plan into operation. On October 13, 1945, in furtherance of the plan, the Clarks created Todd. They then removed from the assets of the partnership the Clybourn Street property, transferring it to Todd and taking from that corporation therefor its capital stock of $30,000 and its note in the sum of $14,844.86, all of which they issued to themselves, personally. They further removed from the assets of the partnership the Keefe Avenue property and transferred it to Todd, and took from that corporation therefor its note for $15,000 which they likewise issued to themselves.
These notes of Todd totalling $29,844.86, together with stock in Todd in the amount of $12,000, together with other assets of a stated value of $17,031.69, the Clarks placed among the assets of the partnership in substitution for the real estate so removed. The exact amount employed in entering this transaction upon the books of the partnership was a charge to their drawing accounts upon transfer of the real estate, and a credit to their drawing accounts upon the substitution of assets. The stated dollar value of these substituted assets was not the equivalent of the cost of the real estate, but it was such cost less the book depreciation of $958.31.
While Todd has a charter authorizing a capital of $100,000, the Clarks subscribed for only $50,000 therefor and took credit upon Todd's corporate books for $30,000 by reason of the transfers of the real estate. They took the stock in their names, except qualifying shares which they took in the names of their wives, and one share which was issued in the name of Todd Clark, infant son of B. E. Clark. The partnership real estate was the only asset obtained by Todd. Neither E. H. nor B. E. Clark, or members of their families, invested therein any funds or anything of value. Thereafter the Clarks caused entries to be made upon the books of Todd in the form of credits against their stock liability balance of $20,000. This at best was their appraisal of the worth of their services rendered to Todd in the months that followed. No change in stock ownership of Todd has been noted upon the books of that corporation except the transfer of $12,000 of shares to the partnership as above noted.
In December, 1945, the Clarks caused three new corporations to be formed. One of them was the bankrupt, which was chartered on December 19, 1945, with an authorized capital of $250,000 - 500 shares at $500 each. The partnership, after the exhausting withdrawals of the partners during the latter part of 1945, on the day of the formation of the bankrupt, had assets (including the notes and stock of Todd) valued by the partners on the books of the partnership at the sum of $1,613,723.90 and had debts and liabilities in the amount of $1,613,629.17, or net assets of $94.73.
It was part of the original plan of the Clarks to place a value of $350,000 upon these assets of the partnership which were represented by the book value of $94.73, and to transfer such assets less $100,000 for fully paid shares of the bankrupt in the amount of $250,000. This portion of the plan was abandoned, and instead the Clarks subscribed for $125,000 in stock of the bankrupt which they took in their names, except nominal shares which they took in the names of their wives. No cash or other asset of value was given or transferred by the Clarks for these 250 shares of the bankrupt, other than the partnership assets, valued by them, both in the closing entries of the partnership and the opening entries of the bankrupt, at $94.73.
The assets transferred to the bankrupt included everything then owned and possessed by the partnership and embraced the assets utilized in connection with the divisions known as Buda and the Control Company, and while the Clarks gave their personal notes to the bankrupt for the balance of their stock subscriptions, nothing was paid on these notes. They did, however, cause credits to be entered upon the books of the bankrupt, which at best constituted their appraisal of the worth of their services rendered to the bankrupt in the months that followed.
Within ten days the Clarks created Buda and the Control Company, and arranged to own all of the stock of these corporations, except nominal qualifying shares, which they took in the names of their wives. The Clarks then removed from the newly formed bankrupt corporation, assets of the book value of $82,430 and transferred them by book entry to Buda, and removed from the bankrupt, assets of the bankrupt of the book value of $19,432.95 and transferred the same to the Control Company. These transactions were entered upon the books of the bankrupt and rested entirely upon the unsecured credit of the respondents, at a time when said transferees had no assets or capital whatever.
All of the assets that went into Buda and the Control Company came from the bankrupt, and then the capital structures of those companies were made up entirely of the promissory notes of the Clarks (upon which nothing has been paid) in the form of cash or assets transferred by the Clarks. Entries were made upon the books of Buda and the Control Company as credits against these note obligations. Neither Buda nor the Control Company was shouldered with any part of the obligations of the partnership theretofore assumed by the bankrupt.
The potentially profitable divisions of Buda and the Control Company were now severed and cloaked in corporate form, and all assets embraced in the previous operations of said divisions, together with such intangible assets as franchises and contracts were now transferred to the corporate instrumentalities.
In keeping with the central plan, no assets of any kind, other than assets of the partnership or its successor, the bankrupt, went into any of the three corporate respondents; and after all of such assets were removed, as already noted, the partnership and the bankrupt were left with net assets not exceeding a book value of $94.73. All liabilities of the partnership were loaded upon the bankrupt and never paid, but no change took place in the operation and management of the divisions and properties above referred to. Yet all of the corporate respondents, as well as the bankrupt, and their assets, properties and business, remained under the absolute dominion and control of E. H. and B. E. Clark who continued to use them and treat them as one enterprise, and in exactly the same manner as they did when these divisions functioned under the partnership. All of the corporate respondents, as well as the bankrupt, had identical officers, directors and stockholders. While the wives of the Clarks held offices, they in fact took no part, and though separate books and records were maintained, they were all kept at the offices of the bankrupt by one staff of bookkeepers and an accountant employed by the bankrupt under the sole direction of the Clarks. Assets were transferred from one corporation to another at the will of and to suit the purposes of the Clarks with total disregard of their fiduciary duties as custodians of the assets of each; there was indiscriminate commingling of the assets of the four corporations; the business affairs, property and assets of these corporations were treated by the Clarks as one business, under one management; proceeds and funds raised by assignment of accounts of one company were utilized in the interests of the others; and the bankrupt was made to do the buying for all the corporate respondents, except certain machines which were purchased directly.
The bankrupt fabricated and produced parts and equipment for the respondents, never at a profit to the bankrupt, but at cost of labor and materials which costs were based on estimates of material and labor rather than the result of an accurate and properly developed cost system, also, such estimated costs did not generally include any factory overhead. At the direction of the Clarks, from time to time, the accounting force was required to prepare consolidated profit and net worth statements, embracing the bankrupt and the respondent corporations, to be used for credit purposes. In these consolidated statements all inter-corporate obligations were eliminated. Such statements were furnished Mercantile Discount Corporation, Midland Finance Corporation and Civic Finance Corporation. The Clarks have made a written admission that the bankrupt, as well as Todd, Buda and the Control Company, while separately incorporated, were parts of the Clark combine, and that it was the common practice of the Clarks to transfer funds from one to the other.
During the year 1946 and up to March 31, 1947, the Clarks diverted from the funds and assets of the bankrupt the sum of $45,939.16 to improve and enhance the Clybourn Street property, title to which was held by Todd. This was accomplished by ordering such repairs and improvements through the bankrupt. The total of these diverted funds was simply entered upon the books of the bankrupt as an unsecured receivable from Todd. No part of these diversions has been repaid, except that the Clarks caused credits to be entered against the same for such amounts as the Clarks deemed fair rental charges against the bankrupt for its use of the Clybourn Street property. The treatment of these diversions of the bankrupt's funds as unsecured advances to Todd left the Clarks free to incur other liabilities on the Clybourn Street property of a secured nature, which together with the pre-existing mortgage and liens total $106,000. Todd had but one remaining asset, namely, the Clybourn Street property. Through the instrumentality of the corporate charter of Todd, the Clarks dealt with this property as their own, and the transaction whereby the Clybourn Street property was transferred to Todd in return for some stock and notes of Todd, was not an "arms length" bargain. It was inherently unfair to the creditors, and the acceptance of the stock and unsecured notes of Todd as consideration for this transfer was grossly inequitable. The transaction was to the Clarks' personal advantage and to the detriment of the creditors of the partnership as well as to those who were to become creditors of the business as it continued according to the Clarks' plan.
The referee further found as a fact that as part of the plan E. H. Clark alone took from the bankrupt $106,500.97 over and above his self-designated salary of $4,166.66 a month in the period from January 1, 1946 to March 31, 1947. He also found that the plan to terminate the partnership medium of conducting business was not conceived in good faith in respect to existing and future creditors, and that the net worth of $94.73 was predicated upon an assumed correctness of book value of the assets as turned over to the bankrupt. Only by applying the most favorable presumptions is this net worth established.
As a result of this planned stripping of assets of the partnership, the new liabilities created in the business operations of the bankrupt were without means of payment. This result is reflected in the scheduled unpaid debts of $845,989.
Based upon these findings the referee concluded as a matter of law that Todd, in contemplation of equity, was an adjunct of the bankrupt - and from its creation has been a mere tool of the Clarks for the carrying out of their fraudulent scheme to place the Clybourn Street property and other assets beyond the reach of creditors of the partnership and those who they knew would become creditors in the continuance of the business under the corporate form of the bankrupt; that the fiction of the corporate entity of Todd must, in the interest of justice, be disregarded and its assets treated as those of the bankrupt; that Todd does not have any substantial adverse interest as against the trustee of the bankrupt as to the assets of Todd; and that respondents' interests are merely colorable.
The District Court approved the referee's findings and conclusions and entered an order that the title to these proceedings be amended to include Todd Building Corporation, and that its creditors be ordered to file their claims with the referee; that Todd is not a separate entity, but is in fact a part and parcel of the bankrupt; that the two Clarks as individuals and as officers of Todd file schedules of assets and liabilities of Todd; and that all the property in possession of Todd be turned over to the trustee in bankruptcy of Clark Supply Company.
At the outset we are met with the contention that the District Court lacked jurisdiction to enter the order appealed from. The argument is that the proceeding was initiated by the filing of a petition asking only that the Clarks, Todd and a number of other corporations closely related to the bankrupt be enjoined from transferring any property or other assets which had belonged to the bankrupt or in which it had or had had any interest; that the petition contained no prayer for general relief, and was never amended to conform to the evidence on the hearing before the referee.
Our study of the record convinces us that the scope of the hearing was so broadened, with the understanding and consent of the parties, that, under the provisions of Rules 15(b) and 54(c) of the Federal Rules of Civil Procedure, 28 U.S.C.A.*fn1, the trustee was entitled to a judgment equally broad in scope. The record sustains appellee's contention that the question whether the assets of Todd were part of the bankrupt estate was at issue, and that appellant so understood. In its main brief appellant stated, "The proceeding before the Referee on the Receiver's petition to enjoin the transfer by Todd Building Corporation of any assets in its possession belonging to the bankrupt, against the objections of the Todd * * * took the final form of an attack by the Trustee on the very corporate existence of Todd * * *." In this state of the record we think the court had jurisdiction to enter the order appealed from. See Matarese v. Moore - McCormack Lines, 2 Cir., 158 F.2d 631, 170 A.L.R. 440; McAllister v. Sloan, 8 Cir., 81 F.2d 707; and Maruska v. Maruska, 7 Cir., 155 F.2d 302, 303.
Appellant next contends that inasmuch as appellee's petition only asked to enjoin the transfer by Todd of any assets in its possession belonging to the bankrupt, the court erred in proceeding thereunder to a summary hearing and a determination that Todd fraudulently received assets from the bankrupt and that all of Todd's assets were the assets of the bankrupt.
A mass of evidence was introduced which was neither admitted nor denied by E. H. Clark, for he did not testify. On this, Todd presents two issues. It first urges that inasmuch as the petition sought only to enjoin Todd from transferring any assets in its possession belonging to the bankrupt, the court cannot proceed to a summary hearing and determination that Todd fraudulently received assets from that bankrupt. To support this contention it relies on the well known legal proposition that where it appears that the adverse claimant's right to property claimed is more than colorable, a bankruptcy court has no jurisdiction to summarily proceed to determine such right. See Harrison v. Chamberlin, 271 U.S. 191, 46 S. Ct. 467, 70 L. Ed. 897, and other like cases. However it concedes that a bankruptcy court may proceed to summary hearing and set aside a corporate entity as fraudulent as against creditors of a bankrupt. Sampsell v. Imperial Paper & Color Corporation, 313 U.S. 215, 61 S. Ct. 904, 85 L. Ed. 1293. Moreover, appellee denies that Todd's title was ever more than colorable, and if this be true, this line of decisions will avail Todd nothing. We have substantially set forth the referee's findings of facts. They are supported by an abundance of substantial evidence. They bear the acceptance and approval of the District Court, and by them we are bound.
The remaining question raised by Todd is that there is an absence of evidence to support the findings that Todd was organized with intent to defraud the present and future creditors of the partnership. Under this issue it urges that (1) a corporate entity can be disregarded only upon a compelling showing that its formation and existence are for the purpose of promoting fraud and injustice, and where actual intent to defraud creditors has been proved by clear, satisfactory and convincing evidence; and (2) that the mere fact that such concerned corporations have common officers and offices and to a certain extent do business with each other does not of itself make any of them liable for the acts of the others.
We agree with appellant's first contention as to this issue as thus stated, excepting the second subdivision which contains the clause "and to a certain extent do business with each other does not of itself make them liable for the acts of the others." However, the second portion is entirely too indefinite as to the character and extent of business thus transacted, and as to the result sought to be accomplished, or what follows as a natural consequence. We know of no reason why such persons should not be held strictly accountable for the natural consequences of their intentional acts. The doctrine of corporate entity will not be regarded when to do so would work fraud or injustice as disclosed by these findings, and we think the District Court had jurisdiction of this action in summary proceedings. Sampsell v. Imperial Paper & Color Corporation, supra; Taylor v. Standard Gas & Electric Company, 306 U.S. 307, 59 S. Ct. 543, 83 L. Ed. 669; and Stone v. Eacho, 4 Cir., 127 F.2d 284 and 4 Cir., 128 F.2d 16.
Order affirmed.
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Figueroa Shop
3626 Highway 26 Columbiana, Alabama 35051(205) 621-7373
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AboutFigueroa Shop is located at the address 3626 Highway 26 in Columbiana, Alabama 35051. They can be contacted via phone at (205) 621-7373 for pricing, hours and directions.
Figueroa Shop has an annual sales volume of 501K - 999,999. .
For maps and directions to Figueroa Shop view the map to the right. For reviews of Figueroa Shop see below.
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3 Bedroom House in Olivedale
Tim's Team - Tim Baxendale
RE/MAX-Masters Bryanston
3 Bedroom House in Olivedale
Offers entrance hall, lounge , dining room onto a large covered patio, family room with fireplace, beautiful kitchen with pantry, 3 bedrooms(main with dressing area), 2 bathrooms(mes) ,double auto-garage,established garden, swimming pool , outdoor ablution, ample parking, Excellent security in access control suburb, close to major routes and amenities.
Exceptional value Offers from R1 800 000 may be considered
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What was previously agricultural land, has been transformed into a bustling residential and commercial hub. The Coca Cola Dome is a well known landmark that provides constant nightlife and live entertainment, drawing people from neighbouring cities. Numerous shopping centres provide locals with opportunities for retail therapy and socialising. Luxurious estates, private schools, top-class healthcare, retirement villages and other facilities are contributing to the upward trend in this bustling, rapidly developing area.Find out more about Northriding to Lanseria
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Samsung super reflective LCD screen 1.72-inch
Ilse Jurriën : February 9th 2006 - 00:30 CET
Samsung 1.72-inch super-reflective LCD screen :
Samsung Electronics Co., Ltd., the world's largest provider of thin-film transistor, liquid crystal display (TFT-LCD) panels, announced that it has developed a 1.72-inch super-reflective (SR) LCD screen that can be read easily outdoors even when the sun is shining brightly. The reflectance rate for the new transflective SR LCD technology is three times that of the usual qqVGA-resolution (128x160 pixels) mobile displays available today. The super-reflective 1.72-inch LCD has a brightness of 100nit, a contrast ratio of 220:1/30:1 (transmission/reflection) and 50 percent color saturation.
Super-reflectance technology
Executive Vice President Jin-hyuk Yun of the Mobile Display Business Team at Samsung Electronics LCD Business says, "Our new super-reflectance technology allows us to offer consumers a high-quality LCD that is very easy to read in bright sunlight. The SR technology has improved the reflecting metal, the color filter and other parts of the assembled LCD module, in addition to the lens and reflectance rate, without increasing production costs or lowering yields."
Samsung reflective lens
Samsung Electronics has applied silver with high reflectance instead of aluminum to achieve the breakthrough. At the same time, Samsung developed a new reflective lens that greatly improves the rate at which light is concentrated into pixels. In addition, light entering the 1.72-inch LCD can be fully harnessed due to improved transmittance capabilities of the polarizer and color filter.
Samsung SR technology with transflective panel
Moreover, to prevent any increase in power consumption, Samsung chose to combine the super-reflectance technology with transflective (illuminating the screen from front and back) rather than transmissive (illuminated from behind the screen) panel technology. The transflective mode makes more effective use of natural outside lighting than the transmissive mode, while the transmissive mode instead would have increased power consumption by requiring a brightness of at least 300nit to sufficiently improve outdoor visibility. Samsung Electronics plans to apply its new SR technology to all its high-resolution transflective displays in phases.
About Samsung Electronics
Samsung Electronics Co., Ltd. is a global leader in semiconductor, telecommunication, digital media and digital convergence technologies with 2004 sales reaching US$55.2 billion and net income of US$10.3 billion reported by the parent company. Employing approximately 113,600 people in over 90 offices in 48 countries, the company consists of five primary business units: the Digital Appliance Business, Digital Media Business, LCD Business, Semiconductor Business and Telecommunication Network Business. Recognized as one of the fastest growing brands, Samsung Electronics is a leading producer of digital TVs, memory chips, mobile phones, and TFT-LCDs.
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text:
You Deserve the Best!!! it's Always Five O'Clock Here-Beach and Ocean Front
The owner has been emailed.
To book this property, you need to complete your booking through checkout on the VRBO website. We can't protect your payment if we don't know you've booked through us. Learn more
- Minimum stay:5 nights
- Sleeps:2
- Bedrooms:1
- Bathrooms:1
- Property type:Condo
- Internet:Yes
- Pets considered:No
- Wheel chair accessible:No
Property description
One of our Four beautiful Sunset Beach Condos, located directly on Sunset Beach, one of the most beautiful beaches in the Caribbean, "Five O'Clock" is a waterfront 1 Bedroom, 1 Bath condo just steps from the sand. Wake up to turquoise water and watch postcard sunsets in the evenings from your private balcony. Enjoy walking on the beach, treasure hunting or simply relaxing with your favorite beverage and a book on the gorgeous white sand beach outside your door. St. Croix has some of the best snorkeling in the Caribbean and this beach is no exception.
Available just a few blocks away from your beachside condo is jet skiing, horseback riding, scuba diving, ATVs, hiking, kayaking, and bicycling. Also on Island is eighteen holes of the most beautiful and challenging golf in the Caribbean at Carambola Golf Club. This spectacular Trent Jones course is a "must play" for those who love golf.
Frederiksted is within walking distance where you will find local restaurants, shops and bakeries as well as the Caribbean Center for the Arts. Enjoy a walk on the pier or just a leisurely stroll along the water front. The pier is a great place to fish, swim, snorkel and dive or just take a plunge into the sea!
Additional activities on the west include: scenic drives through the beautiful rainforest, exploration of plantation ruins, tours of the sustainable farm and Eco tours. Regularly scheduled events on the west side of St. Croix include: sunset jazz concerts, wine club and live music at most beach bars on Sundays. There are plenty of things to do while you enjoy your stay on the beautiful island of St. Croix!
Included with your accommodations:
Spacious and convenient off street parking
Beach chairs, towels and a cooler
BBQ grill and charcoal
Fully equipped kitchen
Bath towels, shampoo/conditioner & soap
Hair Dryer, iron & ironing board
Coffeemaker and coffee
UV Filtered Water & ice
Air conditioning
Owner lives on Island
ENJOY THE MAGIC OF THE SEA, SUN and SAND!!
10 Prosperity Sunset Beach
Don't worry if the calendar is full - see also our three other 1-bedroom condos: Mermaid's Balcony (VRBO listing #462573) and The Seabreeze (VRBO listing #246725), located in the same building and now the Pink Flamingo (VRBO listing 3892619ha). Invite your friends and family to join you in paradise!
When you're ready to book, here are some tips to keep in mind.
Paying with a credit card on VRBO protects your payment for up to $10,000 against listing fraud. We recommend completing your booking on VRBO.Learn more
+1 703-314-5013
Member since: 2013
Property Type
- Condo
- On floor 1
Accommodation Type
- Vacation Rental
- Guests Provide Their Own Meals
- Non Smoking Only
- Pets Not Allowed
- Wheelchair Inaccessible
Bedrooms: 1 Bedroom, Sleeps 2, Beds for 2
- Botanical Garden
- Churches
- Cinemas
- Duty Free Shops
- Library
- Restaurants
- Ruins
Local Services & Businesses
- ATM/Bank
- Groceries
- Hospital
- Laundromat
- Medical Services
Leisure Activities
- Beachcombing
- Bird Watching
- Horseback Riding
- Shelling
- Shopping
- Walking
Location Type
- Beachfront
- Oceanfront
- Waterfront
Sports & Adventure Activities
- Cycling
- Golf
- Hiking
- Jet Skiing
- Kayaking
- Parasailing
- Pier Fishing
- Sailing
- Scuba Diving Or Snorkeling
- Snorkeling
- Snorkeling/Diving
- Air Conditioning
- Hair Dryer
- Internet
- Iron & Board
- Linens Provided
- Living Room
- Stove
- Toaster
RatesCurrency Conversion
|Weekend Night
|Monthly *
Winter Holidays
Dec 21 - Jan 6, 2017
5 night min stay
High Season
Jan 7 - Sep 1, 2017
5 night min stay
My Standard Rate
5 night min stay
Additional information about rental rates
- Refundable Damage Deposit $300
Ask owners for rates for the following holidays:
New years
Christmas and New Years weeks are higher and will book up to a year in advance! Don't wait too long to make your reservation...airline seats book up quickly for the holidays!
Owner's cancellation policy:
100% refund if canceled at least 60 days before arrival date.
Don't forget your vacation protection! Get protected now
Adding our Vacation Protection services can make sure your getaway goes smoothly, no matter what. We offer Cancellation Protection and Damage Protection so you can truly relax.
- Attraction
- 2.1 miles to rental
- View on map
Frederiksted Pier
- Attraction
- 2.0 miles to rental
- View on map
- Attraction
- 7.2 miles to rental
- View on map
Off the Wall
- Restaurant
- View on map
- Attraction
- 21 miles to rental
- View on map
Car: Recommended
Owner info
Year Purchased: 2013
About the owner: Our first trip to St Croix was in 1995. In 2006 after numerous trips to the Island, we decided to move from our Nations Capitol, Washington DC to the Island we love so much. We love our Island living, Sun, Sand, beautiful water and wonderful people.
Why the Owner Chose Northwest, St. Croix, USVI:
Prior to moving to the Island we made many, many trips to St Croix. Our family enjoyed our stay at the Sunset Beach condos and were very excited when we found out two units were for sale. We quickly bought them both and have since added three more. This is where we spend our days on the beach. We know you will enjoy it here as much as we do.
The Unique Benefits at this Condo:
Family owned and operated. The beach is right out your front door and the water is divine. Snorkeling is wonderful. Watch the most amazing sunsets right from your Gallery.
Contact us
Send email
- Primary: +1 703-314-5013
Links to more information:
- CLICK HERE - Take a tour of the Cruzan Rum distillery. It's the only historic distillery that is still producing rum on the island.
- CLICK HERE - N2 The Blue is located near the Frederiksted pier. Their staff has the most dedicated Dive masters you will find anywhere. If you are not a certified diver try a discovery dive. Many guests have said "It's one of the best things I have ever done".
- Click Here to see All My Rental Listings
Amazing sandy beach right out your front door
Stunning view from the comfort of your living room
Complete Kitchen for all your cooking needs, charcoal Grill also available
Energy efficient split AC
Photo taken by a guest
Frederiksted Pier, a great place to dive or snorkel
Wonderful Beach front property
And MORE beach.
Your beautiful, semi-private Sandy beach awaits you
St Croix, the big island
The beautiful Caribbean view from your private Gallery
Colorful living/Kitchen area
Bedroom with a comfortable King size memory foam bed, ample closet space
Bathroom recently remodeled complete with soap, shampoo, and all bath towels
Beachcombing treasures.
Wonderful sandy beach right in front of your condo.
One of many wonderful sunsets you will see from the comfort of your condo.
No passport required for US Citizens.
Island directions
Your Beach at Sunset Beach Condos
This listing was first published here in 2013.
Date last modified - Friday, December 02, 2016
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text:
Quick Start to Financial Freedom DVD
Price: 9.99 USD
Additional Images
Product Details
Author Name: Better Trades
Binding: DVD
Book Condition: New
Publisher USA Better Trades 2008
ISBN Number QSTFF
Seller ID 029525
New. Quick Start to Financial Freedom DVD By Better Trades Product Details This BetterTrades Quick Start to Financial Freedom DataCD - CD comes in a brand new and sealed DVD style case. This CD contains four Better Trades Special Report PDF files. There are no other materials, books or workbooks included with this item. The reports contained on this CD are: 1. Fast Track To Financial Freedom 2. Fight Back! How to Profit From Volatile Oil and Gas Prices 3. Coach Jimmy Johnson's Personal Game Plan: 3 Simple Strategies For Million Dollar Profits 4. Simple Steps to 1000 - 2000 ASIN: B002GUE6J8 Item model number: QSTFF
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The CLIO Image Awards Recognize Patrick Demarchelier
Sound the horns!Read more
patrick demarchelier
The CLIO Image Awards Recognize Patrick Demarchelier
Sound the horns!Read more
Newsflash! Glamour Features a Model on Its April Cover (Forum Buzz)
Natalia Vodianova is a welcome surprise on Glamour's April cover.Read more
A Radiant Robin Wright Makes the Cover of Vanity Fair's April Issue (Forum Buzz)
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The new model gets not one, but four new covers (and counting) for the celebratory issue.Read more
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We aren't even out of January, yet Vogue Japan's March cover surfaced on our forums over the weekend.Read more
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Allure delivered someone unexpected as its February cover star.Read more
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We can't remember the last outstanding cover Vogue Russia published.Read more
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Alessandra Ambrosio and Vogue Brazil go together like Kate Moss and U.K. Vogue.Read more
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Prepare to salivate over the supermodel's most recent cover of Vogue.Read more
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We'd assume magazines would want a fresh start for the new year.Read more
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Vogue Spain is ending 2014 on a high note with its December cover.Read more
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She's here to stay, so we had better get used to it.Read more
Flashback: Vogue Paris October 2005 with Gemma Ward and Du Juan by Patrick Demarchelier
As Gemma Ward fever continues to hit our forums, we take another look back at one of the Aussie model's most memorable Vogue covers.Read more
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Vogue Russia adopted the multi-girl setup by tapping some fresh faces for its November cover.Read more
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The model shows off her long, toned legs on the cover.Read more
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Editors are raving over Nicolas Ghesquière's debut collection for Louis Vuitton, and certain pieces are now being showcased on the September covers.Read more


text:
Rose Parade 2016 Live Streaming, Broadcast
The Rose Parade, officially know as the Tournament of Roses Parade is the annual parade which celebrates the New Year and to kickoff the Rose Bowl American college football bowl game played annually mostly on the New Year's Day at the Rose Bowl Stadium in Pasadena, California.
Known as America's New Year Celebration, the annual Rose Parade features spectacular floral floats that are completely covered with natural materials.
Rose Parade 2016 :
In 2016, the Rose Parade will take place on Friday, January 1, 2016 from 8:00 a.m PST
This year's Rose Bowl Parade features 20 bands including bands from Panama, Japan, Alaska and Hawaii.
Approximately 1 million spectators line the parade route, while tens of millions watch the television coverage in more than 200 international territories and countries.
I am sure you might be searching for Live Streaming and Live Broadcast of Rose Parade 2016.
Rose Parade 2016 Live Broadcast :
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Rose Parade 2016 Live Streaming :
Live Streaming of Rose Parade 2016 will be available on http://ktla.com/live/
Rose Parade 2016 Live Stream will also be available on –
Note : After the Rose Parade 2016 takes place, we will try to have photos and videos of Rose Parade 2016 on our website. Visit again.
Rose Bowl 2016 – Stanford Cardinal vs Iowa Hawkeyes :
In 2016, Rose Bowl will take place between Stanford Cardinal and Iowa Hawkeyes on Friday, January 1, 2016 at the Rose Bowl Stadium in Pasadena, California at 5:00 p.m. ET.
Live Broadcast of Rose Bowl 2016 will be available on ESPN.
Live Streaming of Stanford Cardinal vs Iowa Hawkeyes – Rose Bowl 2016 match will be available on ESPN website.


text:
First Look at Men In Black III
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Men in Black III is coming soon, and along with Will Smith, who we're all used to, we're going to see Josh Grobin portraying a younger Agent K. They could not have possibly done better with that casting, am I right?
In Men in Black III, Agent J has to travel back in time to 1969 (hence the interactions with the younger Agent K). The retro aspect of the film makes way for a different style of aliens--these aliens have a vintage feel to them, like the kind of aliens you might see in early science fiction movies.
Whaat are your impressions of these aliens? Do you like the colorful, psychadellic vibe or not? Comment below and let us know!
Source: Entertainment Weekly


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Nazma Khanam was a 65 year old Bengali wife and mother walking home after an honest day of work in Jamaica. She was stabbed to death.
Some people aren't privileged enough to chase their dreams. Appreciate it if you can.
I hope you understand people's mothers, fathers, sisters, and brothers are dying because of you. @realDonaldTrump