Case 1:09-cv-00825-WMS Document 1

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

JOHN G. ROBERTS, JR, and CAROLE ANN ROBERTS, as AdministratOls ofthe Estate of JOHN G. ROBERTS, III, Deceased

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CASE NO
COMPLAINT

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Plaintiffs,

JURY TRIAL DEMANDED

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CONTINENTAL AIRLINES, INC.; PINNACLE AIRLINES CORP . ; COLGAN AIR, INc..; BOMBARDIER AEROSPACE CORPORATION, Defimdants.

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COMPLAINT

The Plaintiffs, John G. Roberts, JI. and Carole Ann Roberts, as Administrators of the Estate of John G. Roberts, III, Deceased, by their attorneys, Lewis & Lewis, P .c.., for their complaint against the defendants herein, allege as follows:

PARTIES

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Plaintiff, John G. Roberts, Jr, is a resident and a citizen of New YOlk State and

was duly appointed Co-AdministratOl of the Estate of John G. Roberts, III, Deceased, by the Niagara County Surrogate's Court on the 30 th day ofJuly, 2009 .

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2

Plaintiff Carole Ann Roberts, is a resident and a citizen of New York State and

was duly appointed Co-Administrator of the Estate of John G. Roberts, III, Deceased, by the Niagara County Surrogate's Court on the 30 th day ofJuly, 2009. 3.. The decedent, John G. Roberts, III, died in an airplane crash on February 12, 2009

in Clar·ence, New York. 4. The Plaintiffs, Co-Administrators of the Estate ofJohn G. Roberts, III, bring this

action as Co-Administrators and personal representatives of the Estate of John G. Roberts, III, Deceased, and on behalf of each and every beneficiary, survivor and heir of John G. Roberts, III, Deceased. 5.. Defendant, Continental Airlines, Inc . (hereinafter "Continental"), is a corporation

organized under the laws of the State of Delaware, with its principal place of business located in Houston, TX. Continental is licensed to conduct business and does conduct business in the State of New York The agent for service of process on Continental is CT Corporation Systems, 111 Eighth Avenue, New York, NY 1001 L 6. The Defendant, Pinnacle Airlines Corp. (hereinafter "Pinnacle"), is a corporation

organized under the laws of the State of Delaware with its principal place of business located in Memphis, TN. Pinnacle is licensed to conduct business in the State of New York and does conduct business in the State of New York The agent for service of process on Pinnacle is CT Corporation Systems, 800 S . Gay Street, Suite 2021, Knoxville, TN 37929-9710 7. The Defendant, Colgan Air, Inc., (hereinafter "Colgan"), is a corporation

organized under the laws of the State of Virginia, with its principal place of business located in Manassas, VA Colgan is licensed to conduct business in the State of New York and does

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conduct business in the State of New York The agent for seIvice of process on Colgan is CT Corporation Systems, 111 Eighth Avenue, New York, NY 10011 8. The defendant, Bombardier Aerospace Corporation, (hereinafter "Bombardier"),

is a corporation organized under the laws of the State of Texas and maintains its principal place of business in Quebec, Canada. Bombardier is licensed to conduct business in the State of New York and does conduct business in the State of New York The agent for service of process on Bombardier is CT Corporation Systems, 350 N . S1. Paul Street, Dallas, TX 75201
JURISDICTION AND VENUE

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This Court has jurisdiction over this action pursuant to 28 U.SC §1332(a)(l)..

The matter in controversy exceeds the sum of$75,000 . 00, exclusive of interest and costs . 10.. Venue is proper based on 28 USc. §1391(a) because a substantial part of the

events or omissions giving rise to the claim occurred in this Judicial District. The plaintiffs and the decedent were and are residents of this Judicial District. All defendants conduct business in this Judicial District

COMMON ALLEGATIONS OF FACT

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At all times relevant hereto, Defendants Continental, Pimrac1e, and Colgan were

common carriers for hire 12..
On or before February 12, 2009, Defendants, Colgan andlor Pinnacle andlor

Continental owned, managed, maintained, scheduled, supervised and operated a Bombardier Dash 8-Q400 twin-engine turboprop airplane bearing a registration number of N200WQ. (Hereinafter refeued to as "aircraft"). 13 On February 12, 2009 the Defendant Colgan andlor the Defendant Continental

operated the above-referenced aircraft, as Colgan Air Flight 3407 d/b/a Continental Flight 3407,

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as a scheduled flight flam Newark Liberty International Airport, located at Newark, New Jersey, to Buffalo Niagara International Airport located in Buffa!o, New York. 14. Flight 3407 was marketed as Continental Flight 3407 under the Continental brarrd

arrd Defendarrt, Colgarr, operated said aircraft under the name "Continental Connection" . 15.. At all times mentioned hereafter, Defendarrt Colgarr, operated under the name

"Continental Connection" under a contractual agreement with Defendarrt, Continental. 16 On February 12, 2009, Plaintiffs decedent, John G. Roberts, III, was a fiue-

paying passenger onboard Flight 3407. 17.. Upon information arrd belief, at all times hereinafter mentioned, Defendarrts,

Pinnacle arrd Colgarr had a parent/subsidiary and/or principal/agent relationship.. Defendarrt, Pinnacle is a parent and/or principal arrd/or alter ego of Colgarr Pinnacle utilizes Colgan to As a

conduct business in certain areas of the United States, including the State of New York.

result of the above, both Pinnacle arrd Colgarr are liable to the Plaintiffs for the crash of Flight 3407 on February 12, 2009 resulting in injury arrd death to the Plaintiffs decedent, John G Roberts, IlL 18. Upon information arrd belief, the aircraft was purchased by Defendarrt, Pinnacle

flam Defimdarrt, Bombardier arrd was thereafter trarrsferred to Defendarrt, Colgan . 19.. Upon information and belief; on February 12, 2009, Marvin Renslow (hereinafter

"Renslow"), was a resident of the State of Florida, Captain of Flight 3407, arrd arr employee of the Defendarrt, Colgarr. 20. Upon information arrd belief; on February 12, 2009, Rebecca Shaw (hereinafter

"Shaw"), was a resident of the State of Washington, First Officer of Flight 3407, arrd arr employee ofthe Defendant, Colgan.

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2L

On Febrmny 12,2009 at approximately 10:17 p.m., the subject aircraft was flying

on auto-pilot in known icing conditions on its instrument approach to Runway 23 at the Buffhlo Niagara International Airport when the flight crew lost control of the aircraft 22. At said time and place the flight crew allowed the aircraft to fly too slow which

caused the aircraft's Stall Warning and Protection System to activate .

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After the flight crew lost control of the aircraft, and in the period of time leading

to the crash, the aircraft flew out of control, rolled, dived and ultimately crashed into a house on Long Road in Clarence Center, New York. The sudden, violent and unexpected movements of the aircraft resulted in the passengers onboard the aircraft, including the Plaintiffs' Decedent, John G., Roberts, III, being sUJ:>iected to forces which caused bodily injmy, pain and suffering, pre-impact terror, mental anguish, emotional distress and other damages, 24, On and before February 12, 2009, the Defendants, Colgan, Pinnacle and

Continental, owned, controlled, inspected, serviced, maintained, repaired, trained the Pilot and Flight Crew, monitored, loaded and operated Flight 3407, its aircraft and its component parts, including but not limited to the de-icing systems, flight control systems, electrical systems and with the Defendant, Bombardier, wrote and/or approved instructions and warnings for the aircraft and for the crew of Flight 3407, 25 Defendant Bombardier designed, manufactmed, assembled, inspected, tested,

serviced, maintained, monitored, the subject aircraft and its component parts., 26 The Defendants actions as described in this complaint were wanton and reckless

and demonstrated a conscious indifference and utter disregard of their effects upon the health and safety of the passengers on Flight 3407, including the Plaintiffs' Decedent, John G.. Roberts, III,

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27,

As a direct and proximate result of the acts of the Defendants, the Plaintiffs'

Decedent, John G, Roberts, III, sustained serious injUlies which resulted in his death, and his beneficiaries, heirs and sUlvivors have incmred funeral, bmial and related expenditmes" 28, As a direct and proximate result ofthe acts of the Defendants, his parents and his

adult siblings, have been damaged and will continue to be damaged and deprived of the Decedent's services, companionship, guidance, increased inheritance and support in the futme and have sustained and will continue to sustain other pecuniary loss, as well as other compensable damages UIIder the applicable Law 29 The Plaintiffs' Decedent, JOM G Roberts, III, was at all times in the exercise of

due care and in no way contributed to or caused his injUlies or death,

COUNT I
NEGLIGENCE - DEFENDANTS CONTINENTAL, PINNACLE AND COLGAN

30.,

Plaintiffs repeat and reallege all of the allegations contained above with the same

force and effect as if more fully setforth herein, 31., On or before Febmary 12, 2009, Defendants, Continental, Pinnacle and Colgan by

and through their agents, servants and employees, as cornmon carriers for hire, were obligated to exercise the highest degree of care and to provide safe transportation to all passengers on Flight 3407, 32., On or before Febmary 12, 2009 notwithstanding their legal duty, the Defendants,

Continental, Pinnacle and Colgan by and through their employees, servants and/or agents, including but not limited to Renslow and Shaw, breached their legal duty of car'e and acted in a negligent, reckless and car'eless manner in the following respects:

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a. Improperly flew the approach to Runway 23 at the Buffalo-Niagara International Airport; b Allowed and caused the aircraft to fly at an inadequate speed and improperly reacted to the activation of the subject aircraft's Stall Warning and Protection Systems; c equipment; d. e
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Failed to propeJly use and operate all available de-icing andlor anti-icing

Failed to properly monitor ice accumulation during flight; Failed to properly and safely operate and control the subject aircraft; Negligently caused the subject aircraft to enter an aerodynamic stall; Failed to perform all appropriate procedures to accomplish a safe landing; Failed to avoid andlor exit atmospheric icing conditions; Allowed an unsafe ice accumulation to develop on the subject aircraft; Failed to properly train its pilots and flight crew; Failed to maintain a sterile cockpit; Failed to properly train its pilot and flight crew in low-airspeed awareness; Failed to properly note readings on instrument panel; Negligently hired, supervised, and trained the flight crew of Flight 3407;

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o Failed to provide the pilot and flight crew of Flight 3407 with the necessary information of meteorological conditions; p conditions; q. Failed to provide the pilot and flight crew of Flight 3407 with propel andlor adequate training as to the proper control, management and response to adverse weather andlor atmospheric icing conditions;
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Dispatched the subject aircraft into known areas of atmospheric icing

Failed to properly train the pilot and flight crew of Flight 3407 regarding

roll anomalies;

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s. Failed to avoid atmospheric icing conditions when it was known or should have been known that the subject aircraft was unsuited for flight in such atmospheric icing conditions;
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Was otherwise careless, reckless, and negligent
COUNTn STRICT LIABILITY - DEFENDANT BOMBARDIER

33.

Plaintiffs repeat and reallege all of the allegations contained above with the same

force and effect as if more fully setforth herein. 34 At all times hereinafter mentioned, the subject aircraft as Flight 3407 was being

used for its intended and/or reasonably foreseeable purpose. 35 Bombardier manufactured the subject aircraft designated as Flight 3407 and its

component parts, systems, manuals, instructions and warnings were defective and unreasonably dangerous by reason of defective design and manufacture, and the failure of Defendant, Bombardier to give adequate and proper warnings of the dangers existing and adequate instructions regarding the avoidance of such dangers.. The defective and dangerous condition of the subject aircraft exposed the Plaintiffs' Decedent, John G Roberts, III, and others similarly situated on Flight 3407 as well as the general public to unreasonable risk of harm and was a proximate and producing cause of the Plaintiffs' Decedent's injuries, death and damages . 36. The unreasonably dangerous conditions and/or defects include, but are not limited

to, the de-icing system, the pilot's operation manual, the flight control systems, maintenance manuals and procedures, and the absence of adequate warnings and instructions regarding the danger. At the time the subject aircraft and its components, maintenance procedures were sold andlor marketed and/or placed into the str·eam of commerce by the Defendant, Bombardier, such product was defective and unreasonably dangerous to persons including the Plaintiffs' Decedent,

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John G. Roberts, III, who could reasonably be expected to use or benefit fiom them, and which defective and unreasonably dangerous conditions were, a direct and proximate cause of the Plaintiffs' Decedent's injuries, death and damages . 37.. The subject aircraft was also defective by reason of the Defendant, Bombardier's

failure to include or place within the subject aircraft adequate or proper warnings andlor instIUctions as to the dangers associated with the design and foreseeable maintenance and use of the subject aircraft and how to avoid such dangers, and which defects rendered the subject aircraft dangerous and a direct and proximate cause of the Plaintiffs' Decedent's injuries, death and damages. 38.. The defective subject aircraft and inadequate warnings provided by the Defendant

Bombardier was a substantial factor in causing the Plaintiffs' Decedent's injuries, death and damages.. Therefore, Defendant, Bombardier is strictly liable for Plaintiffs' damages and for the Decedent's injuries and death. 39 As a direct and proximate result of the Defendant, Bombardier's actions, Flight

3407 crashed causing the death of John G. Roberts, III and resulted in damages to the Plaintiffs, to the Estate oDohn G. Roberts, III, and to the Decedent's beneficiaries, Mother, Father, siblings and all other beneficiaries, survivors and heirs under applicable law, as well as causing preimpact tenor, pain, suffering, injuries and death to John G Roberts, III. As a result, the

distributees and survivors of John G. Roberts, III, have suffered pecuniary loss, have incurred funeral expenses and have suffered the loss of pecuniary benefits they had a reasonable right to expect had John G. Roberts, III, lived, including but not limited to loss of support, guidance, and assistance, as well as inheritance

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COUNT III RES IPSA LOOUITUR - DEFENDANTS. CONTINENTAL. PINNCALE AND COLGAN

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Plaintiffs repeat and reallege all of the allegations contained above with the same

force and effect as ifmore fully setforth herein. 41.. The Plaintiffs plead the Doctrine of "Res Ipsa Loquitur". The occunence speaks

for itself; that is an event such as the crash of Flight 3407 would not usually occur absent negligence; the instrumentality being the subject aircraft was within the Defendant's Continental, Pinnacle and Colgan's exclusive control; and the Plaintiffs' Decedent, John G Roberts, III, did not contribute to the cause of the crash of Flight 3407 . 42, As a direct and proximate result of the negligence of the Defendants, Continental,

Pinnacle and Colgan, Flight 3407, crashed causing injuries and then death to John G, Roberts, III and resulted in damages to the PlaintifIs, to the Estate of John G Roberts, III, and to the Decedent's Mother, Father, siblings and all other beneficiaries, survivors and heirs under applicable law, as well as causing pre-impact terror, pain, suffering, injuries and death to John G Roberts, III As a result, the distributees and survivors of John G, Roberts, III, have suffered

pecuniary loss, have incurred funeral expenses and have suffered a loss of pecuniary benefits they had a reasonable right to expect had John G, Roberts III lived, including but not limited to the loss of support, guidance, and assistance as well as possible inheritance,

COUNT IV NEGLIGENCE - DEFENDANT BOMBARDIER

43"

Plaintiffs repeat and reallege all of the allegations contained above with the same

force and effect as if more fully setforth herein,

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44.

Defendant Bombardier negligently designed, marrufactured, tested, the subject

aircraft and its component parts, systems, marruals, instIUctions arrd warnings . 45. 3407 . 46.. Defendarrt Bombardier knew, or in the exercise of reasonable care should have Defendarrt Bombardier's negligence was a proximate cause of the crash of Flight

known, tlrat the subject aircraft arrd its components parts, systems, marruals, instructions arrd warnings were defective arrd unreasonably darrgerous to tlrose persons likely to use tire subject aircraft arrd its component parts for tire plUposes arrd for tire marrner in which tlrey were intended to be used arrd for plUposes reasonably foreseeable to the Defendant Bombardier including the plUpose for which tire subject aircraft was designated as Flight 3407 on FebIUary 12,2009 47.. Defendarrt Bombardier's negligence was the proximate cause of the Plaintiffs

damages arrd the Decedent's injlUies arrd deatlr . 48.. Defendarrt Bombardier was negligent in tlrat it failed to give adequate arrd proper

warnings arrd instIUctions to ordinary arrd foreseeable users of tire subject aircraft, including Defendarrts, Continental, Pinnacle arrd Colgarr, as well as the Plaintiffs Decedent, John G. Ro belts, IlL 49.. Defendarrt Bombardier owed tire Plaintiffs' Decedent, John G Roberts, III, a duty

of reasonable care in the design, marrufacture and testing of tire subject aircraft arrd its component parts. 50.. Defendarrt Bombardier breached their legal duty arrd were negligent in one or

more of tire following respects: a. defects; Failed to design, marrufactlUe arrd assemble tire subject aircraft free of all

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h. Failed to design, manufactme and assemble the subject aircraft in such a way as to assme that it was safe and appropriate for its intended use; c.. Failed to properly and adequately test and monitor the subject aircraft so as to learn of its inherent inability to perform safely in atmospheric icing conditions; d.. Failed to design, manufactme and assemble the subject aircraft with an adequate Low-Airspeed Alert System; e.. Failed to design, manufactme and assemble the subject aircraft with an adequate Auto- Throttle System in order to assure appropriate airspeed was maintained in icing conditions; f Failed to correct known wing structure icing problems;

g. Failed to provide adequate instructions and warning to the flight crews of the su~ject aircraft and the flying public, including Plaintiffs' Decedent, John G. Roberts, III, of the potential hazards associated with the operation of the subject aircraft in atmospheric icing conditions, and how to avoid or preclude those hazards in the operation of the subject aircraft; h. Designed, manufactmed, distributed and sold the subject aircraft with a wing structme that resulted in an unsafe accumulation of ice;
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Was otherwise cardess, reckless and negligent

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Defendant Bombardier's negligent acts were a proximate cause of the crash, the

Plaintiffs' damages and the injury and death ofthe Plaintiffs' Decedent, John G. Roberts, III. COUNT V BREACH OF EXPRESS AND IMPLIED WARRANTY - DEFENDANT BOMBARDIER

52.

PlaintifIs repeat and reallege all of the allegations contained above with the same

force and effect as if more fully setforth herein. 53. Defendant Bombardier is an aerospace manufacturer that holds itself out to the

public as having exceptional knowledge, skill and experience in the design, construction, assembly, manufacturing, testing and maintenance of aircraft and in the preparation of flight and maintenance manuals, and inspection of transport category aircraft and their components.

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54.

In the course of its business, Defendant Bombardier designed, constIUcted,

assembled, manufactured, inspected, tested and published flight opemtions and maintenance manuals, and caused the subject aircraft to be certified, including the subject aircmft that was designated as Flight 3407 on FebIUary 12, 2009, which Defendant Bombardier expressly and impliedly warranted was fit for its intended purposes and use as an aircraft in commercial air transportation, being airworthy and free of unreasonably dangerous defects. 55 Defendant Bombardier marketed, sold, distributed and caused the subject aircraft

designated as Flight 3407 on February 12, 2009, to be introduced into the stream of commerce by sale or lease to the Defendants, Continental, Pinnacle and Colgan 56. Defendant Bombardier expressly and impliedly warmnted to the geneml public,

including the Plaintiffs' Decedent, John G Roberts, III, that the subject aircraft was fit for the purpose for which it was intended. 57. As a fare-paying passenger, the PlaintifIs' Decedent, John G. Roberts, III, made

use ofthe subject aircraft designated as Flight 3407 in an intended and foreseeable manner, and he relied upon the express and implied warranties made by the Defendant Bombardier . 58..
In direct contradiction to the warranties, the subject aircraft was not fit for its

intended and foreseeable use, thereby rendering the aircraft unreasonably dangerous. 59.. Defendant Bombardier breached the aforementioned express and implied

warranties because of the aircmft's inadequate and defective components which included but was not limited to, Defendant Bombardier's failure to provide warning of the aircraft's inadequacies and defects and the failure to provide proper and adequate instruction in the safe opemtion and maintenance of the subject aircraft .

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60.

Defendant Bombardier's breach of wauanties and the defects refened to above

rendered the subject aircraft umeasonably dangerous and was a proximate and producing cause of the crash of Flight 3407, the damages sustained by the Plaintiffs, and the injUly and death of the Plaintiffs' Decedent, John G.. Roberts, IlL 61. As a member of the traveling public, the Plaintiffs' Decedent, John G. Roberts,

III, relied to his detriment upon Defendant, Bombardier's express and implied representations of

safety and fitness fOl the use which the subject aircraft designated as Flight 3407 was put to on FeblUary 12,2009 . COUNT VI PUNITIVE DAMAGES ALL OF THE DEFENDANTS

62.

Plaintiffs repeat and reallege all of the allegations contained above with the same

force and effect as if more fully setfOlth herein 63 . The actions and admissions of the Defendants named herein, including their own

conduct as well as the actions and omissions of their officers, agents, servants and/or employees as setfOlth above was grossly negligent and said Defendants acted with wanton and/or reckless disregard for the safety of others including the Plaintiffs' Decedent, John G.. Roberts, III, and as such said conduct wan ants the imposition of punitive damages . 64.. One or more of the allegations of gross negligence and/or reckless conduct on the

part of the Defendants was a substantial factor in causing the Plaintiffs' damages and the injUles and death of the Plaintiffs' Decedent, John G. Roberts, IlL 65.. Based upon the foregoing, the Plaintiffs are entitled to punitive damages pUlsuant

to applicable Law.

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WHEREFORE, the Plaintiffs demand judgment, jointly and sevelally as follows: 1. CompensatOlY damages for the wrongful death suffered and to be suffered by the Plaintiffs, the Decedent's sUlviving adult siblings and all otheJ beneficiaJies, sUlvivors and heiIs UIIdel applicable Law in an amoUllt which exceeds the jUlisdictionai amoUllt of $75,000 . 00, exclusive of interest and costs . (NY EPLL §5-4.3); CompensatOlY damages for the injUlies and losses sustained by the PlaintifIs' Decedent, John G. Robelts, III, befOle he died. (NY EPLL §1133); FUllerai expenses (NY EPTL §5-4.3); Damages aJising from the pre-impact physical pain and suffering, mental tellO!, and mental anguish ofthe Plaintiffs' Decedent, John G. Robelts, III, (N.YEP.TL §11-33); Punitive damages in an amoUllt to be fixed by the JUly; Interest from the date ofthe OCCUlTence, FeblUaJy 12, 2009, upon the Plincipal SUlll recovered by the Plaintiffs . (N.Y EPTL §5-4.J); The costs and disbUlsements incUlred in the prosecution of this action; That all issues offact in this action be detelmined by a jUly; Any other and further relief which the COUlt deems just and propel

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Dated:

September 17, 2009 Buffalo, New York

BY'~~~~~-+=7~~S, ESQ . Attorneys for Plaintiffi LEWIS & LEWIS, PC 800 Cathedral PaJk Tower 37 Franklin Street Buffalo, NY 14202 (716) 854-2100 alewis@lewislawcom