Case 7:12-cv-04982-ER Document 1 Filed 06/26/12 Page 1 of 5

UNITED STATES DI TRICT COURT

SOUTHERN DISTRI T OF NEW YORK
BANKERS STANDA D INSURANCE COMPANY
as subrogee of Marcus and Elaine Cree,
436 Walnut Street
Philadelphia, P A 1910
Plaintiff,
v.
ALL AMERICAN C IMNEY SWEEPS, INC.,
159 16
th
Street
Verplanck, NY 10596
CIVIL ACTION NO. f.-
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JURY TRIAL DEMANpED
COMPLAINT

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Defendant.
JUDGE RAMOS
Plaintiff, Bank rs Standard Insurance Company a/s/o Marcus and Elaine Cree, by and
through its attorneys, ozen O'Connor, P.C., upon information and belief, hereby alleges the
following:
PARTIES
1. Plainti herein, Bankers Standard Insurance Company (hereinafter "Bankers
Standard"), is a corpo ation duly organized and existing under the laws of the Commonwealth of
Pennsylvania, with its principal place of business located in Philadelphia, Pennsylvania, and at
all times hereinafter entioned was authorized to do business in the State of New York as an
insurance company.
2. t herein, Ail American Chimney Sweeps, Inc. (hereinafter "All
American"), is a corp ration duly organized and existing under the laws of the State of New
York, with its princip place of business located in Verplanck, New York, and at all times
hereinafter mentioned was engaged in the business of, inter alia, cleaning and servicing
chimneys and related quipment.
Case 7:12-cv-04982-ER Document 1 Filed 06/26/12 Page 2 of 5
JURISDICTION AND VENUE
3. The j sdiction of this Court is based upon diversity of citizenship pursuant to 28
U.S.C. 1332. The m tter in controversy exclusive of interest and costs, exceeds the sum of
$75,000. Venue is pr per in this judicial district pursuant to 28 U.S.C. 1391(a).
FACTS
4. es material hereto, Plaintiff Bankers Standard provided insurance
coverage to Marcus d Elaine Cree (hereinafter "the Crees") with respect to the real and
personal property loca ed at 14 Goldens Bridge Road, Katonah, New York (hereinafter "the
property").
5. At all t mes material hereto, the Crees maintained a wood burning stove at the
property.
6. The w od burning stove as installed was not in compliance with the standards
promulgated by the N tional Fire Protection Association (hereinafter "NFP A"), the existing
building codes for the State of New York, and was deficient and dangerous in certain respects,
including but not limi ed to the following:
(a) the wood burning stove as installed was connected to the chimney through
a single wall flue pipe, despite NFP A standards that mandate a double
wall flue pipe;
(b) the flue pipe penetrated the wall through a one-inch thick brick fayade
mounted over plywood, despite NFP A standards that mandate an eighteen-
inch clearance between combustibles and the single wall flue pipe; and
(c) the chimney lacked a flue liner, despite NFPA standards that mandate
masonry chimneys be lined.
7. The fo egoing deficiencies and dangerous conditions and other deficiencies and
dangerous conditions ere readily observable to any professional with experience in servicing
and cleaning chimney .
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Case 7:12-cv-04982-ER Document 1 Filed 06/26/12 Page 3 of 5
8. On or bout October 13, 2010, All American provided service for the wood
burning stove, the flu pipe and the chimney including cleaning the flue pipe and chimney.
9. On or bout November 13,2011, All American provided service for the wood
burning stove, the flu pipe and the chimney including cleaning the flue pipe and chimney.
10. to service and clean the flue pipe and chimney on or about October 13,
2010 and November 1 ,2011, All American would necessarily have had to disconnect the flue
pipe from the base of he chimney, disassemble the flue pipe, and access the base of the chimney.
11. After s rvicing and cleaning the flue pipe and chimney on or about October 13,
2010 and November 1 , 2011, All American would necessarily have had to reassemble the flue
pipe, and reattach the ue pipe to the base of the chimney.
12. In the ourse of providing its services for the wood burning stove on or about
October 13, 2010 and ovember 13,2011, All American observed, or reasonably should have
observed, the numero s deficiencies and dangerous conditions with the wood burning stove
installation, the flue p pe, and the chimney.
13. Despit observing these deficiencies and dangerous conditions on or about
October 13,2010 and ovember 13, 2011, All American failed to make any recommendations to
the Crees concerning orrective measures for the single wall flue pipe, the clearance from
combustibles, or the a sence of a flue liner.
14. Despit observing these deficiencies and dangerous conditions on or about
October 13,2010 and ovember 13, 2011, All American failed to warn or otherwise inform the
Crees that they shoul not use the wood burning stove.
15. On or bout March 11, 2012, a fire originated at the location where the flue pipe
for the wood burning tove penetrated the wall and entered the chimney base.
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Case 7:12-cv-04982-ER Document 1 Filed 06/26/12 Page 4 of 5
16. The fir caused substantial damage and destruction to the Crees' real and personal
property, and necessit ted the Crees move out of their home for an extended period.
17. Pursu t to the terms and conditions of its contract of insurance, Plaintiff Bankers
Standards has made p yments to the Crees in an amount in excess of $75,000.
18. As are ult of the aforesaid payments, and pursuant to the contract of insurance
and by operation ofla , Plaintiff Bankers Standard is subrogated to the rights of the Crees
against all parties resp nsible for the occurrence of said damages.
COUNT I - NEGLIGENCE
19. Plainti Bankers Standard incorporates by reference the allegations in the
paragraphs abovc as tough fully set forth at length herein.
20. The fir and the consequent damage to the Crees' property was caused by the
negligence, carelessne s and negligent omissions of Defendant All American, its agents, servants
and/or employees acti g within the course and scope of their employment in:
(a) failing to provide its services in a proper and safe manner;
(b) failing to perform a proper inspection of the wood burning stove, the flue
pipe and the chimney in accordance with accepted standards and practices
in the industry;
(c) failing to perform a proper cleaning of the wood burning stove, the flue
ipe and the chimney in accordance with accepted standards and practices
in the industry;
(d) failing to properly inspect, identify and report the deficient and dangerous
conditions of the wood burning stove installation, the flue pipe, the
himble and the chimney;
(e) ailing to recommend correcting the deficient and dangerous conditions of
e wood burning stove installation, the flue pipe, the thimble and the
hirnney;
(f) ailing to identify and warn about the deficient and dangerous conditions
xi sting at the property;
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Case 7:12-cv-04982-ER Document 1 Filed 06/26/12 Page 5 of 5
(g) creating the deficient and dangerous condition that exposed the Crees to
the risk of damages resulting from a fire by reassembling the faulty wood.
burning stove installation including but not limited to reconnecting the
single wall flue pipe to the chimney base;
(h) leaving the property in a condition that exposed the Crees to the risk of
damages resulting from a fire;
(i) failing to take all reasonable and necessary precautions to safeguard the
property against the risk of fire;
(j) causing and/or allowing the fire to occur; and
(k) otherwise failing to use due care under the circumstances.
21. As a d' ect and proximate result of the aforesaid conduct of Defendant All
American, Plaintiff B ers Standard sustained damage in an amount in excess of $75,000.
WHEREFO , Plaintiff Bankers Standard demands judgment against Defendant All
American in an amo t in excess of $75,000, together with interest and the cost of this action.
Dated: New York, N w York
June 25, 201
OF COUNSEL:
STEVEN K. GERBE , ESQ.
COZEN O'CONNO
1900 Market Street
Philadelphia, Pennsyl ania 19103
(215) 665-2088
sgerber@cozen.com
NEWYORK_DOWNTOWN\24 1516\1319148.000
Respectfully Submitted,
COZEN O'CONNOR
By:. __ 4 - - - - - - - ~ ~ ~ ~ ~ ~
1 B. GALLIGAN, ESQ. (JG-
45 Broadway, 23'd Floor
New York, New York 10006
(212) 908-1276
jgalligan@cozen.com
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