Case 5:12-cv-01448-MAD-ATB Document 1 Filed 09/19/12 Page 1 of 6

Gregory G. Barnett, Esq. CASEY & BARNETT LLC 65 West 36* Street, 9l" Floor New York, New York 10018 (212)286-0225 Attorneys for Plaintiff UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK X ACE AMERICAN INSURANCE COMPANY a/s/o DAVID HARRIS, Plaintiff, COMPLAINT - against BILL'S BOATWORKS, INC. and BILL HENNEBERRY, Defendant. COMPLAINT Plaintiff, ACE AMERICAN INSURANCE COMPANY a/s/o DAVID HARRIS, 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 2012 Civ.
5:12-CV-1448 [MAD/ATB]

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

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1133 Avenue of the Americas, New York, New York 10036-6710, and is the subrogated insurance underwriter of DAVID HARRIS. 3. At all material times, DAVID HARRIS (hereinafter "Harris"), 1694 Blakeley Road,

East Aurora, NY 14052 was the owner of a 1984, 29-foot Chris Craft 281 Catalina Express motorboat (hereinafter the "Boat"), bearing hull identification number CCHDC704M83L-1984, and New York State registration number NY4799PG. 4. At all material times, defendant, BILL'S BOATWORKS, INC., (hereinafter

"Defendant" or "Bill's Boatworks") was and is a corporation with an office and place of business located at 187 Wilmuth Ave, Lackawanna, New York 14218, and is engaged in the business of, among other things, winter storage, fall haul out and spring start up and launch of boats, and was at all times acting in the capacity of a bailee for hire. 5. Upon information and belief, BILL HENNEBERRY lives at 187 Wilmuth

Avenue, Lackawanna, New York 14218 and is the owner/operator of BILL'S BOATWORKS. 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 vessel, as their respective interests may ultimately appear, and plaintiff is entitled to maintain this action.

RELEVANT FACTS 7. At all material times Bill's Boatworks operated a boat storage yard at 187

Wilmuth Avenue, Lackawanna, NY 14218 (hereinafter the "Yard"). 8. At all material times, David Harris was a customer of Bill's Boatworks and

contracted with them to haul and store his boat for the Winter and then launch the boat the following Spring.

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Document 1 Filed 09/19/12 Page 3 of 6

9.

At all material times, David Harris was the bailor and Bill's Boatworks the bailee

of Mr. Harris' boat stored at Bill's Boatworks. 10. Harris delivered his Boat in good order and condition, for winter storage at the

Yard, and Bill's Boatworks received and accepted her into the Yard. 11. the Boat. 12. Boat had sunk. 13. 14. As a result, Harris sustained a loss of no less than $20,638.81. At all times relevant hereto, a contract of insurance for properly damage was in On or about June 3, 2010, at approximately 8:00 PM, it was discovered that the On or about June 3, 2010, at approximately 3:00 PM, Bill's Boatwork launched

effect between Harris and ACE, which provided coverage for, among other things, loss or damage to the Boat that is the subject matter of this litigation. 15. Pursuant to the aforementioned contract of insurance between Harris and ACE,

monies have been expended on behalf of Harris to the detriment of ACE due to the damages sustained. 16. 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. 17. By reason of the foregoing, plaintiff has sustained losses which will be shown

with specificity at trial, no part of wliich has been paid, although duly demanded, which are presently estimated to be no less than $20,636.81.

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18.

Upon information and belief the boat was launched by Bill Henneberry who ran

the engine, turned off the battery switches and secured the boat at the service dock at the small boat harbor in Buffalo.

COUNT 1 BREACH OF CONTRACT

19. Plaintiff repeats, reiterates and realleges each and every allegation contained in

paragraphs 1 through 18. inclusive, as if herein set forth at length. 20. Pursuant to the contract for storage and launching the boat, Bill's Boatworks

owed contractual duties to Harris to store, bail, keep and care for, protect and deliver the Boat in the same good order and condition as at the time it received and accepted the Boat for storage. 21. Bill's Boatworks breached its contractual duties by failing to store, bail, keep and

care for, protect and deliver the Boat in the same good order and condition as at the time it received and accepted the Boat for storage. 22. Plaintiff has performed all of the conditions precedent on their part to be

performed under the terms of the contract. 23. As a direct and proximate result of the breach of contract defendant Bill's

Boatworks, Plaintiff has suffered damages in the amount of $20,636.81.

COUNT 11 BREACH OF BAILMENT 24. Plaintiff repeals, reiterates and realleges each and every allegation contained in

paragraphs 1 through 23, inclusive, as if herein set forth at length.

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25.

Pursuant to its obligations as a bailee for hire of Harris' Boat for fall haul, storage

of the Boat, winterizing of the engines, spring start up, and launch of the Boat, Bill's Boatworks owed contractual and statutory duties to Harris to store, bail, keep and care for, protect and deliver the Boat in the same good order and condition as at the time it received and accepted the Boat for storage. 26. Bill's Boatworks breached its duty as a bailee for hire by failing to store, bail,

keep and care for, protect and deliver the Boat in the same good order and condition as at the time they received and accepted the Boat for storage. 27. Plaintiff has performed all of the conditions precedent on their part to be

performed under the terms of the contract. 28. As a direct and proximate result of the negligence, gross negligence and breach of

duties by defendant Bill's Boatworks, plaintiff has suffered damages in the amount of $20,636.81.

COUNT 111 NEGLIGENCE 29. Plaintiff repeats, reiterates and realleges each and every allegation contained in

paragraphs 1 through 28, inclusive, as if herein set forth at length. 30. Bill's Boatworks and Bill Henneberry owed a duty to Harris to store, bail, keep,

care for, and deliver the Boat back to Harris in the same condition as it was received. 31. Bill's Boatwork and Bill Henneberry breached their duty and were negligent and

grossly negligent by failing to properly inspect the boat and pumps prior and subsequent to the launch of the Boat.

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32.

As a direct and proximate result of Bill's Boatworks and Bill Henneberry's

negligence, gross negligence and breach of duties, plaintiff has suffered damages in the amount of $20,636.81.

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 defendants, jointly and

severally, for the amount of plaintiffs damages in the amount of at least $20,638.81, together with interest, costs and the disbursements of this action; and 3. That this Court grant to plaintiff such other and further relief as may be deemed

just and proper.

Dated: New York, New York September 14,2012 230-58 CASEY & BARNETT, LLC Attorneys for Plaintiff By: .fUtjiMj ifitb VU iory Greg* G. Bam 'ametl S\~T\SO 65 West 36ai Street, 9lh Floor New York, New York 10018 (212)286-0225