SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------------------------------------------------------------X : ALAN MALTER, REBECCA MALTER and

ROBERT WARREN, : Plaintiffs, -againstTHE CITY OF NEW YORK Defendant. : : : : Index No. /07 Purchased: October 27, 2004 COMPLAINT

------------------------------------------------------------------------X 1. The plaintiffs, by Richard M. Mortner, Esq., their attorney, complaining of the

defendant, allege: 2. That the City of New York, New York (the "City"), the defendant herein, was at all

times hereinafter mentioned, and now is, a domestic municipal corporation duly organized and existing under the laws of the State of New York. 3. That at all times hereinafter mentioned Church Avenue, in Brooklyn, NY (the

"Avenue") was, and still is, a public street in the City and a part and parcel of the City, and the sewer running in, along and under said public street is a public sewer owned by the City for the use and benefit of the residents of the City. 4. That it is and was at all of the said times the duty of the defendant to keep and

maintain the said sewer and catch basins in a reasonably safe and proper condition for the use and benefit of the public. 5. The premises at 1103 Church Avenue, Brooklyn, New York is a two-story mixed

use building owned by plaintiffs Alan and Rebecca Malter (the Premises).
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6.

For approximately 15 years the basement and first floor of the Premises has been

used as a storage space to archive a collection of rare and antique and collectible documents and works of art, including but not limited to rare and antique posters, prints, stock and bond certificates, currency, coins, postcards, books, magazines, pins and other souvenir collectibles (the Archive). The Archive is owned collectively by plaintiffs Alan and Rebecca Malter and Robert Warren The Archive has a value in excess of $2,000,000. 7. That on or about the 11th day of July, 2006, at seven o'clock in the forenoon,

through the negligence and omissions of duty of the City, its officers, agents and servants, in negligently constructing and maintaining the public sewer in the Avenue, a public street in the City, and allowing the same to be obstructed, clogged up and out of repair, and also in negligently constructing the catch basins in said street at the foot of the hill on the Avenue, and allowing the same to be clogged up and obstructed, the surface water, debris and other sewer ingredients backed up and over onto the Premises, flooding the lower floor in the Premises so that the contents of the same, i.e. portions of the Archive, were damaged and causing filth, surface water, debris and other sewer ingredients to be deposited on the floors and on portions of the Archive so that the said floors and numerous rare and antique items from the Archive were damaged, which damages was caused solely through the negligence of the City. 8. That heretofore on or about the 15th day of October, 2006, and within ninety (90)

days after the above claim (hereinafter referred to as the First Claim) herein sued upon arose, Plaintiffs Alan and Rebecca Malter and Robert Warren, as claimants, caused a Notice of Claim in writing, sworn to by Alan Malter and on behalf of the claimants, to be duly served upon the defendant by delivering a copy thereof to the Comptroller of the City of New York, by hand, which
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said Notice of Claim set forth the name and post office address of the said claimants, the nature of the First Claim, the time when, the place where, and the manner in which the said claim arose and the items of damages or injuries claimed to have been sustained so far as then practicable; that on or about October 23, 2006 receipt of said Notice of Claim was acknowledged in writing by the Office of the Comptroller of the City of New York; that on or about October 24, 2006, the First Claim was disallowed in writing by the Office of the Comptroller of the City of New York; and that this action is commenced within one year and ninety days after the happening of the event upon which the First Claim is based. 9. That on or about the 16th day of April, 2007, through the negligence and omissions

of duty of the City, its officers, agents and servants, in negligently constructing and maintaining the public sewer in the Avenue, a public street in the City, and allowing the same to be obstructed, clogged up and out of repair, and also in negligently constructing the catch basins in said street at the foot of the hill on the Avenue, and allowing the same to be clogged up and obstructed, the surface water, debris and other sewer ingredients backed up and over onto the Premises, flooding the lower floor in the Premises so that the contents of the same, i.e. portions of the Archive, were damaged and causing filth, surface water, debris and other sewer ingredients to be deposited on the floors and on portions of the Archive so that the said floors and numerous rare and antique items from the Archive were damaged, which damages was caused solely through the negligence of the City. 10. That heretofore on or about the 15th day of June, 2007, and within ninety (90) days

after the claim described in paragraph 9 above (hereinafter referred to as the Second Claim), herein sued upon arose, Plaintiffs Alan and Rebecca Malter and Robert Warren, as claimants,
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caused a Notice of Claim in writing, sworn to by Alan Malter and on behalf of the claimants, to be duly served upon the defendant by delivering a copy thereof to the Comptroller of the City of New York, by hand, which said Notice of Claim set forth the name and post office address of the said claimants, the nature of the Second Claim, the time when, the place where, and the manner in which the said claim arose and the items of damages or injuries claimed to have been sustained so far as then practicable; that on or about June 23, 2007 receipt of said Notice of Claim was acknowledged in writing by the Office of the Comptroller of the City of New York; that on or about June 29, 2007, the Second Claim was disallowed in writing by the Office of the Comptroller of the City of New York; and that this action is commenced within one year and ninety days after the happening of the event upon which the Second Claim is based. 11. Upon information and belief, that at the said times of the First and Second Claims

and for many months prior thereto the said sewer and catch basins in said street hereinbefore referred to were clogged up and obstructed and improperly maintained, all of which this defendant had notice of, both actual and constructive. 12. That notice of such defective, unsafe, dangerous and obstructed condition of said

public sewer and catch basins, was given to the Department of Environmental Protection of the defendant City of New York, on the following dates: November 2, 1998; November 28, 2004; September 13, 2005; October 8, 2005; October 12, 2005 and July 12, 2006. 13. That said damages resulting from the First and Second Claims were caused to and

sustained by the plaintiffs without any fault or negligence on their own part; and said damages
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were caused to and sustained by the plaintiffs solely through the fault, carelessness and negligence of the defendant, its officers, agents, servants and employees. 14. That as a result of defendants negligence and omissions of duty, in negligently

constructing and maintaining the public sewer in Church Avenue, and allowing the same to be obstructed, clogged up and out of repair, and also in negligently constructing the catch basins on and in the area of Church Avenue, and allowing the same to be clogged up and obstructed Plaintiffs have been damaged in the sum of at least $650,000, plus interest and the cost of this suit. WHEREFORE, Plaintiffs demand judgment against Defendants in an amount to proven at trial but in the amount of at least $650,000, and such other and further relief as the Court deems just and proper; plus appropriate interest, costs, and disbursements. Dated: October 9, 2007 New York, NY Respectfully submitted, __________________________ Richard M. Mortner, Esq. 16 East 40th Street, Floor 12 New York, NY 10016 Tel. 212-575-0500