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ACE AMERICAN INSURANCE COMPANY v. APPROVED MARINE, INC. Complaint

ATTENTION: It is possible that this information may no longer be current and therefore may be inaccurate. The index contains both open and closed cases and is not a complete list of cases in which an ACE Insurance Group company is involved. This information is provided to give interested persons an idea of the issues disputed in the indexed cases. For a full understanding of a case, one should read the rest of the court file, including the response. For the most up-to-date and complete information on a case, visit www.pacer.gov or contact the clerk of the relevant court.

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Case 1 •rt£rov-jQ6fi73-TP< nips lift; P O
cument 1
Filed 08/31/12 Page 1 of 7
Gregory G. Barnett Janine Brown CASEY & BARNETT, LLC 65 West 36th Street, 9th Floor New York, New York 10018 (212)286-0225 Attorneys for Plaintiff
12 C 66 73 V
AUG 3 1 2012
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ACE AMERICAN INSURANCE COMPANY a/s/o SCOTT MARK & PETER SCALAMANDRE, Plaintiff,
U.S.D.C.&ij.i?.Y. CASHES
;
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2012 Civ.
COMPLAINT - against APPROVED MARINE, INC., Defendant.
... _x
COMPLAINT Plaintiff, ACE AMERICAN INSURANCE COMPANY a/s/o SCOTT MARK & PETER SCALAMANDRE, by and through its attorneys, Casey & Barnett, LLC, as and for its Complaint, alleges upon information and belief as follows: JURISDICTION 1. This is an admiralty and maritime claim within the meaning of Rule 9(h) of the
Federal Rules of Civil Procedure. Jurisdiction is predicated upon 28 U.S.C. §1333. PARTIES 2. At all material times, ACE AMERICAN INSURANCE COMPANY (hereinafter
"ACE" or "Plaintiff) was and is a corporation with an office and place of business located at
Case 1:12-cv-06673-TPG Document 1
Filed 08/31/12 Page 2 of 7
1133 Avenue of the Americas, New York, New York 10036-6710, and is the subrogated insurance underwriter of SCOTT MARK & PETER SCALAMANDRE. 3. At all material times, SCOTT MARK (hereinafter "Mark") of 263 Gordon Place,
Freeport NY 11520 was the owner of a 2003, 34-foot Mainship Pilot 34 motorboat (hereinafter the "Mark Boat"), bearing hull identification number MPTGE296L203. 4. At all material times, PETER SCALAMANDRE (hereinafter "Scalamandre") of 55
Crescent Cove Court, Seaford NY 11783 was the owner of a 1997, 51-foot Sunseeker Express Camarque (hereinafter the "Scalamandre Boat"), bearing hull identification number
YSK20751L697. 5. At all material times, defendant, APPROVED MARTNE, INC. (hereinafter
"Defendant" or "Approved Marine") was and is a corporation with an office and place of business located at 11 Hudson Avenue, Freeport NY 11520, and is engaged in the business of, among other things, a Boat Yard and/or Marina which hauls and stores boats for the Winter for a fee and was at all times acting in the capacity of a bailee for hire. 6. Plaintiff brings this action on its own behalf and as agent and/or trustee on behalf
of and for the interest of all parties who may be or become interested in the said consignment, as their respective interests may ultimately appear, and plaintiff is entitled to maintain this action. RELEVANT FACTS 7. At all material times Approved Marine operated a boat storage yard at 11 Hudson
Avenue, Freeport NY 11520 (hereinafter the "Yard"). 8. At all material times, Scott was the owner of the Scott Boat and a customer of
Approved Marine and engaged the Yard to haul and store his boat for the winter and was the bailor of the Scott Boat.
Case 1:12-cv-06673-TPG Document 1
Filed 08/31/12 Page 3 of 7
9.
Scott delivered the Scott Boat in good order and condition, for winter storage at
the Yard, and Approved Marine received the vessel, hauled the vessel and stored the vessel in the Yard. 10. At all material times, Scalamandre was the owner of the Scalamandre Boat and a
customer of Approved Marine and engaged the Yard to haul and store his boat for the winter and was the bailor of the Scalamandre Boat. 11. Scott delivered the Scott Boat in good order and condition, for winter storage at
the Yard, and Approved Marine received the vessel, hauled the vessel and stored the vessel in the Yard. 12. On or about February 1, 2012, two employees of Approved Marine began repair
work on a 1987 Silverton boat in the Yard named Atlantis. 13. 14. During the process of repairing the Atlantis, a fire started at Approved Marine. Both the Scott Boat and the Scalamandre Boat (hereinafter the "subject Boats"
sustained severe fire and smoke damage as a result of the fire. 15. As a result of the fire, the Scott Boat was deemed a total loss by both Approved
Marine and Scott's representatives and was destroyed. 16. 17. 18. 19. Scott sustained a loss of no less than $185,766.45. As a result of the fire, the Scalamandre Boat was severely damaged. Scalamandre sustained a loss of no less than $191,872.02. At all times relevant hereto, a contract of insurance for property damage was in
effect between Scott and ACE, which provided coverage for, among other things, loss or damage to the Scott Boat that is the subject matter of this litigation.
Case 1:12-cv-06673-TPG Document 1
Filed 08/31/12 Page 4 of 7
20.
At all times relevant hereto, a contract of insurance for property damage was in
effect between Scalamandre and ACE, which provided coverage for, among other things, loss or damage to the Scalamandre Boat that is the subject matter of this litigation. 21. Pursuant to the aforementioned contracts of insurance, monies have been
expended on behalf of Scott and Scalamandre to the detriment of ACE due to the damages sustained as a result of the fire. 22. As ACE has sustained damages as a result of said expenditures, expenditures
rightly the responsibility of the defendant, ACE has an equitable right of subrogation and is subrogated, to the extent of its expenditures, to the rights of its insured with respect to any and all claims for damages against the defendant. 23. By reason of the foregoing, plaintiff has sustained losses which will be shown
with specificity at trial, no part of which has been paid, although duly demanded, which are presently estimated to be no less than $377,638.47.
COUNT 1 BREACH OF CONTRACT
24. Plaintiff repeats, reiterates and realleges each and every allegation contained in
paragraphs 1 through 23, inclusive, as if herein set forth at length. 25. Plaintiffs delivered the subject Boats in good order and condition to Approved
Marine who thereupon took delivery and possession of the Boats. 26. Pursuant to the contract for storage, defendant owed contractual duties to Scott
and Scalamandre to store, bail, keep and care for, protect and deliver the subject Boats in the same good order and condition as at the time it received and accepted the subject Boats for storage.
Case 1:12-cv-06673-TPG Document 1 Filed 08/31/12 Page 5 of 7
27.
Approved Marine breached its contractual duties by failing to store, bail, keep and
care for, protect and deliver the subject Boats in the same good order and condition as at the time it received and accepted the subject Boats for storage. 28. The losses sustained by Plaintiffs were not the result of any act or omission of
Plaintiffs but, on the contrary, were solely the result of defendant's fault, neglect, breach of contract and breach of bailment. 29. Plaintiffs and/or and their predecessors have performed all of the conditions
precedent on their part to be performed under the terms of the contracts. 30. By reason of the foregoing, Plaintiffs have sustained losses which will be shown
with specificity at trial, no part of which has been paid, although duly demanded, but which are presently estimated at $377,638.47. COUNT II BREACH OF BAILMENT 31. Plaintiff repeats, reiterates and realleges each and every allegation contained in
paragraphs 1 through 29, inclusive, as if herein set forth at length. 32. Plaintiffs delivered the subject Boats in good order and condition to Approved
Marine who thereupon took delivery and possession of the Boats. 33. Pursuant to its obligations as a bailee for hire of the subject Boats for fall haul and
storage of the Boats for Winter, Approved Marine owed contractual and statutory duties to Scott and Scalamandre to store, bail, keep and care for, protect and deliver the subject Boats in the same good order and condition as at the time it received and accepted the Boats for storage.
Case 1:12-cv-06673-TPG Document 1 Filed 08/31/12 Page 6 of 7
34.
Approved Marine breached its duty as a bailee for hire by failing to store, bail,
keep and care for, protect and deliver the subject Boats in the same good order and condition as at the time they received and accepted the subject Boats for storage. 35. The losses sustained by Plaintiffs were not the result of any act or omission of
Plaintiffs but, on the contrary, were solely the result of defendant's fault, neglect, breach of contract and breach of bailment. 36. Plaintiffs and/or and their predecessors have performed all of the conditions
precedent on their part to be performed under the terms of the contracts. 37. By reason of the foregoing, Plaintiffs have sustained losses which will be shown
with specificity at trial, no part of which has been paid, although duly demanded, but which are presently estimated at $377,638.47. COUNT HI NEGLIGENCE 38. Plaintiff repeats, reiterates and realleges each and every allegation contained in
paragraphs 1 through 31, inclusive, as if herein set forth at length. 39. Plaintiffs delivered the subject Boats in good order and condition to Approved
Marine who thereupon took delivery and possession of the Boats. 40. Approved Marine owed a duty to Scott and Scalamandre to store, bail, keep, care
for, and deliver the subject Boats. Approved Marine owed a duty to Plaintiff to exercise due care in its control and custody of the subject Boats. 41. Approved Marine breached and was negligent and grossly negligent in its duties
by failing to store, bail, keep and care for, protect and deliver the subject Boats in the same good order and condition as at the time they received and accepted the subject Boats for storage.
Case 1:12-cv-06673-TPG Document 1
Filed 08/31/12 Page 7 of 7
42.
The losses sustained by Plaintiffs were not the result of any act or omission of
Plaintiffs but, on the contrary, were solely the result of defendant's fault, neglect and gross negligence. 43. Plaintiff and/or and their predecessors have performed all of the conditions
precedent on their part to be performed under the terms of the contracts. 44. By reason of the foregoing, Plaintiffs have sustained losses which will be shown
with specificity at trial, no part of which has been paid, although duly demanded, but which are presently estimated at $377,638.
WHEREFORE, for the foregoing reasons, Plaintiff prays that the Court grant the following: 1. That process in due form of law may issue against defendant citing it to appear
and answer all and singular the matters aforesaid; 2. That judgment may be entered in favor of plaintiff against defendant for the
amount of plaintiff s damages in the amount of at least $377,638.47, together with interest, costs, attorney fees and the disbursements of this action; and 3. proper. Dated: New York, New York August 31, 2012 230-56/57 CASEY & BARNETT, LLC Attorneys for Plaintiff By: GreyoYy C'i. Barnett 65 West 36Ul Street, 9th Floor New York, New York 10018 (212)286-0225 That this Court grant to plaintiff such other and further relief as may be just and

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D.E. 1 COMPLAINT against Approved Marine, Inc. (Filing Fee $ 350.00, Receipt Number 1047611)Document filed by Ace American Insurance Company.pdf2 MB

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