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Plaintiff,
COMPLAINT
-against~
index No. O9-l 0 86
MATERIALS CORP., VENTURE SUPPLY INC., and
Defendants.
Plaintiftl St. James Development Corp., by its attorneys, Rosenberg Fortuna
Laitman, LLP, as and for its complaint, respectfully alleges as follows:
THE PARTIES
l. St. James Development Corp. ames") is a domestic corporation duly
organized and existing Linder the laws of the State of New York with a principal place of business
in the County of Nassau, State of New York.
2. Upon information and belief defendant Long Island Wallpaper
("Wallpaper") is a domestic corporation with a principal place of business in the County ol'Sufl`olk,
State of New York.
3. Upon information and belieL defendant KP Organization, Inc. is a
domestic business corporation with a principal place ofbusiness in the County ofSuffo1k, State of
New York.
4. Upon information and belief, defendant Venture Supply Inc. ("Venture") is
a Virginia corporation with its principal place of business located at 1140 Azalea Garden Road,
Norfolk, Virginia.
5. Upon information and belief, defendant Shandong Taihe Dongxin Co., Ltd.
("Sl1ando11g") is a Chinese corporation with a principal place ofbusiness located at Dawenkou,
Daiyue District Street 'l`aian, Shandong Province, China 271026.
BACKGROUND
6. St, James is the sponsor and developer of Hamlet Estates at St. James
("Devel0pment"), ahomeowners association community which, upon full completion, shall consist
of up to one hundred sixty-seven (167) homes located in the Hamlet of St, James, Town of
Smithtown, County of Sutlfolk, State of New York.
7. ln the course of constructing the Development, St. _James constructed several
model homes. The model homes were constructed tor the initial purpose of exhibiting the same to
prospective purchasers as specimens ofthe homes available for purchase Within the Development.
Ultimately, the model homes are n1a1'l<eted for sale as residences, in the same fashion as the other
homes Within the Development,
8, One such model is the Model, located at Lot 8, 5 Hamlet Woods Drive,
within the Development (thc lVIodcl").
9. On or about April l, 2006, St. James entered into an agreement with
Wallpaper whereby Wallpaper agreed to perform all Work and furnish all supervision, labor, tools,
equipment and materials necessary lor the construction olsheet rock (drywall), spaeldc and paint lor
Model (the "Agreement").
l0. Pursuant to the Agreement, Wallpaper was to, ll7l??l' alia, furnish all
supervision and materials necessary to complete the scope ofwork provided 'lor therein.
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11. Pursuant to Agreement, Wallpaper was to provide St. James with a
complete and Iimctional project in lull compliance with all applicable local, state and national
building codes and regulations.
12. Pursuant to the Agreement, Wallpaper was obligated to repair, remove or
replace any of its worlonanship, material and equipment that is defective or substandard.
13. Pursuant to the Agreement, Wallpaper is obligated to pay all expenses
incurred in repairing, removing or replacing any other work required as a result of removing,
replacing or repairing defective or nonconforming work.
14. Wallpaper lurnishcd and installed the drywall contained in the Model.
15. Drywall furnished and installed by Wallpaper at the Model is defective in
that it emits various sulfide gases and/or other chemicals that create noxious, "rotten egg-like" odors,
(the "Defective
16. Upon information and belief, at all relevant times, KP was the alter ego of
Wallpaper.
17. Upon information and belief, at all relevant times, Wallpaper was the alter ego
of KP.
18. Suliides and other noxious gases, such as those emitted from the Defective
Drywall, has caused and shall continue to cause corrosion and damage to personal property, such as
plumbing, piping and iixtures, electrical wiring, appliances, air-conditioning and refrigerated coils
and other metal surlaces and property.
19, Upon information and belief, Venture imported, distributed, delivered,
supplied, inspected, marketed and/or sold the Detective Drywall to Wallpaper, who, in turn,
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furnislied and installed the Detective Drywall at the ll Model.
20. Upon information and belief, Shandong designed, manufactured, exported,
distributed, delivered, supplied, inspected, marketed and/or sold the Defective Drywall to Venture.
2] . The drywall was de leetive in that the gypsum and other components ofthe
drywall break down and release sullides and other noxious gases that are then emitted irom the
Detective Drywall.
22. As a direct and approximate result of the Defective Drywall designed,
manufactured, exported, imported, distributed, delivered, supplied, inspected, marketed, sold and/or
installed by defendants herein and the corrosive and effects ofthe sullide and other noxious
gases being released from the Defective Drywall, St. James has suffered, and continues to suffer
damages. These damages include, but are not limited to: cost of inspection, (ii) costs and
expenses necessary to remedy, replace and remove the Defective Drywall and other property that has
been inspected; lost value or devaluation of the Model; (iv) loss of use and enjoyment of the
Model; and (V) the costs of maintaining ownership ofthe Model, including, but not limited to,
mortgage interest, real estate taxes, insurance and utilities.
23. St. James repeats and realleges the allegations set lorth in paragraphs
through "22" of this Complaint as il` more fully set forth at length herein.
24. Defendants owed a duty to St. James to exercise reasonable care in designing,
manufacturing, exporting, importing, distributing, delivering, supplying, inspecting, marketing,
selling and/or installing the drywall, including the duty to adequately warn of their failure to do the
same.
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25. Defendants knew or should have known that their wrongful acts and
omissions would result in harm and damages in the manner set forth herein.
26. Defendants breached their duty to reasonable care in the designing,
manufacturing, exporting, importing, distributing, delivering, supplying, inspecting, marketing,
selling and/or installing the drywall.
27. Delendants breached their duties to St. James by failing to warn about the
defective nature of the drywall.
28. Defendant, through the exercise of reasonable care, knew or should have
known the nature of the Defective Drywall and the adverse affects it could have on the Model.
29. Given the defect in the drywall, defendants knew or should have known that
the drywall could, and would, cause harm and/or damages to St. James.
30. As a direct and proximate cause of defendants' acts and omissions, St. James
was harmed and has incurred damages as described herein.
31. As a result ofthe foregoing, St, James has suffered damages in an amount not
presently ascertainable but believed to be in excess of Two Hundred Fifty Thousand
Dollars.
32. St. James repeats and realleges the allegations set forth in paragraphs
through "3l" of this Complaint as if more fully set forth at length herein.
33. Defendants were responsible lor the manufacturing, inspecting, distributing,
selling and installing ofthe drywall at issue.
34. By the time delendants' drywall lelt defendants' hands, the risks associated
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with the product far outweighed its benelits.
35. Further, by the time defendants' drywall left defendants' hands, they knew,
or should have known, the product was unsafe, detective and could cause serious, physical and
economic harm to St. .Iames.
36. Delendants had a duty to provide St. James with a safe and properly
lunctioning product.
37. Defendants failed to uphold this duty.
38. Because defendants' product created an unreasonable risk to St. James'
property, defendants are strictly liable for economic injuries to St. James.
39. No prudent buyer of defendants' product could be expected to determine on
his or her own that defendants' product was dangerous and defective.
40. Defendants not only manufactured, inspected, distributed, sold and/ or installed
a poorly designed and defective drywall, but also failed to give St. James adequate warning regarding
the risk associated with defendants' product.
41. Defendants' drywall was a substantial factor in the economic and physical
losses that have been, and continue to be, incurred by St. James.
42. As a direct and proximate cause ofdefendants' acts and oinissions, St. James
has incurred, and shall incur, economic losses including, but not limited to, cost l` inspection;
(ii) costs and expenses necessary to remedy, replace and remove the Defective Drywall and othcr
property that has been inspected; lost value or devaluation ofthe Model; (iv) loss ol` use and
enjoyment ol" Model; and the costs of maintaining ownership of the Model, including,
but not limited to, mortgage interest, real estate taxes, insurance :md utilities.
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43. As a result ofthe lbregoing, St. James has suffered damages in an amount not
presently ascertainable but believed to be in excess of Two Hundred Fifty Thousand
Dollars.
OF IMPLIED WARRANTY OF MERCIIANTABILITY1
44. St. James repeats and realleges the allegations set forth in paragraphs
through "43" of this Complaint as if more fully set ibrth at length herein.
45. St. .lames was and is in privity, express or implied, with the defendants,
46. St. James was and is a foreseeable third party beneficiary of any express or
implied warranty made by any of the defendants to each other.
47. At the times defendants installed, utilized, supplied, inspected and/or sold
drywall use in the Model, defendants knew, or it was reasonably foreseeable, that the drywall
would be installed in the Model for use as a building material in a residential dwelling unit, and
impliedly warranted the product to be fit for that purpose.
48. Defendants' drywall product was placed into the stream of commerce by
defendants in a defective condition and the Defective Drywall was expected to, and did, reach users,
handlers and persons coming into contact with said product without any change in the condition in
which it was sold.
49. The drywall was defectiye because it was not fit for the purposes intended or
reasonably foreseeable by defendants; to wit, the installation ofthe drywall in the for use
as a building material in a residential dwelling unit, because it contained defects as set herein.
50. The defendants breached the implied warranty merehantabil ity because the
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drywall was not lit to be installed in the l~l Model as a building material in a residential dwelling unit
due to the deleets set
51. Detendants had reasonable and adequate notice of St. James' claims for a
breach of implied warranty of merchantability and failed to cure.
52. Detendants knew or should have known that their wrongful acts and
omissions would result in economic, incidental and consequential damages in the manner set forth
herein,
53, As a direct and proximate cause of delendants' acts and omissions, St, James
shall incur and has incurred economic damages in an amount not presently ascertainable but believed
to be in excess of Two Hundred Fifty Thousand Dollars.
(BREACH OF IMPLIED WARRANTY
54, St. James repeats and realleges the allegations set forth in paragraphs
through "53" of this Complaint as if more fully set forth at length herein.
55. Defendants were in privity with St. James and/or St, James was a foreseeable
third party beneficiary ot' any warranty,
56, Defendants' drywall product was placed into the stream of commerce by
defendants in a defective condi tion and was expected to, and did, reach users, handlers and persons
coming into contact with said product without any change in the condition in which it was sold.
57. The drywall was defective because it was not lit for specilic purpose of
installing in the Model as a building material, for which St. James bought the product in reliance
on the implied and express warranties of delendants.
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5 8. Defendants breached the implied warranty of Htness [or a particular purpose
because drywall was not 'tit to bc installed in the l-l Model as a building material in a residential
dwelling unit due to set forth herein.
59. Detendants had reasonable and adequate notice of St, James' claims for
breach of implied warranty of litness for a particular purpose and tailed to cure,
60. Defendants knew or should have known that their wrongful acts and
omissions would result in economic, incidental and consequential damages in the manner set forth
herein.
6l. As a direct and proximate cause of defendants' acts and omissions, plaintiff
has sustained damages in an amount not presently ascertainahle but believed to be in excess ol`Two
Hundred Fifty Thousand Dollars.
62. St. James repeats and realleges the allegations set forth in paragraphs
through "6l" of this Complaint as if more fully set forth at length herein.
63. St. James has performed all conditions and covenants ofthe Agreement to be
performed on its part.
64. In furnishing and installing the Defective Drywall in the Model, Wallpaper
is in breach ofthe Agreement' covenant to hrrnish all materials within accepted industry standards.
65. ln furnishing and installing the Defective Drywall in the Model, Wallpaper
is in breach of the Agreement's covenant to furnish all materials necessary for a complete and
t`unctional project.
66. In refusing to repair, remove and/or replace the Defective Drywall and in
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re [using to pay all expenses of St. James incurred in repairing, removing and/or replacing all other
Work required as a result ofthe Defective Drywall, Wallpaper is in breach ol' the Agreement.
67. As a result ol` the foregoing, St. James has sustained damages in an amount
not presently ascertainable, but believed to be in excess of Two Hundred Fifty Thousand
Dollars.
WHEREFORE, St. James respectfully requests judgment against defendants as
lollovvs:
a. on its lirst cause of action, against all defendants in an amount not
presently ascertainable, but believed to be in excess of Two Hundred Filty Thousand
Dollars
b. on its second cause of action, against all defendants in an amount not
presently asceitainable, but believed to be in excess of Two Hundred Fifty Thousand
Dollars;
c. on its third cause of action, against all defendants in an amount not
presently ascertainable, but believed to be in excess of Two Hundred Fifty Thousand
Dollars;
d. on its fourth cause of action, against all defendants in an amount not
presently ascertainable, but believed to be in excess of Two Hundred Fi [ty Thousand
Dollars;
e. on its lifth cause of action, against defendants Wallpaper and KP, in
an amount not presently ascertainable, but believed to be in excess of Two Hundred Fifty Thousand
Dollars;
lO
11 all together with interest thereon from April 20, 2006; and
g. the costs and disbursements of this action,
Dated: Garden City, New York
September 15, 2009
By:
Attorneys for Defendants
ROSENBERG FORTU
.q "1
I 'ilk 1
mi iij siz ja ne
Attorneys for 2111 tif i
666 Old Coun"y Roe Suite 810
Garden City, ew Y>>rl< 11530
(516) 228-6666
LONG ISLAND WALLPAPER, INC. and
Travelers
300 Huntington Quadrangle, Suite
PO. Box 9028
Melville, New York 11747
(631) 501-3023
Defendant
908 Long Island Avenue
Deer Park, New York 11729
Defendant
1140 Azalea Garden Road
Norfolk, Virginia 23502
Dawenkou Daiyue District Street Ill
Taiun, Slizmdong
China 271026
ll