FILED: NEW YORK COUNTY CLERK 06/14/ :52 AM INDEX NO /2016 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/14/2016

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1 FILED: NEW YORK COUNTY CLERK 06/14/ :52 AM INDEX NO /2016 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/14/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x PALACE HOISTING & SCAFFOLDING CORP. OF NY, Index No.: -against- Plaintiff, SUMMONS. ARC NY NYC570SEVENTH, LLC and IBEX CONSTRUCTION COMPANY, LLC, Defendant x TO THE ABOVE NAMED DEFENDANTS: Plaintiff designates New York County as the place for trial. The basis of the venue designated is transaction accrued in the County. You are hereby summoned to answer the Verified Complaint in this action, and to serve a copy of your answer or if the complaint is not served with this summons, to serve a notice of appearance on the plaintiff s attorney(s) within twenty (20) days after the service of this Summons exclusive of the day of service, where service is made by delivery upon you personally within the State, or within thirty (30) days after completion of service where service is made in any other manner. In case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the Verified Complaint. Dated: New York, New York June 14, 2016 WILSON & CHAN, LLP By: Henry C. Chan, Esq. Attorneys for Plaintiff PALACE HOISTING & SCAFFOLDING CORP. OF NY 733 Third Avenue, 16th Floor New York, New York Tel: (646) Fax: (646) hchan@wilsonchanlaw.com Our File No of 10

2 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x PALACE HOISTING & SCAFFOLDING CORP. OF NY, -against- Plaintiff, Index No.: VERIFIED COMPLAINT. ARC NY NYC570SEVENTH, LLC and IBEX CONSTRUCTION COMPANY, LLC, Defendant x Plaintiff, PALACE HOISTING & SCAFFOLDING CORP. OF NY ( Palace or plaintiff ), by and through its attorneys, WILSON & CHAN, LLP, and for its Verified Complaint against defendants ARC NY NYC570SEVENTH, LLC ( ARC ) and IBEX CONSTRUCTION COMPANY, LLC ( Ibex ) (collectively the defendants ) alleges as follows: The Parties 1. At all relevant times, Palace was and/or is a domestic corporation duly organized and existing under and by virtue of the laws of the State of New York with its place of business located at 72 Mill Street, Amityville, New York That upon information and belief, at all times hereinafter mentioned, defendant ARC was and/or is a foreign limited liability company and existing under and by virtue of the laws of the State of Delaware. Further, upon information and belief, at all times hereinafter mentioned, ARC held and holds an ownership interest in the real property located at 570 Seventh Avenue, City of New York, County of New York, State of New York, Block 1012, Lot 36 (the Premises ). 3. That upon information and belief, at all times hereinafter mentioned, defendant Ibex was and/or is a domestic limited liability company duly organized and existing under and 2 of 10

3 by virtue of the laws of the State of New York with its principal place of business located at One Whitehall Street, 7th Floor, New York, New York Jurisdictional Facts 4. Defendants engaged plaintiff to perform professional construction services in the City of New York, County of New York, and State of New York. Such construction services were rendered in the City of New York, County of New York, and State of New York. 5. Pursuant to CPLR 301, the defendants are registered with the Secretary of State to conduct legal business within the State of New York. 6. Accordingly, the defendants activities in and availment of the protection of the laws of the State of New York make jurisdiction over the defendants in the State of New York, venue in the County of New York. AS AND FOR A FIRST CAUSE OF ACTION (Breach of Contract against the Defendants for the Premises) 7. Plaintiff repeats and re-alleges all of the allegations set forth in Paragraphs 1 through 6 of this Verified Complaint as if set forth fully here. 8. Plaintiff agreed, at the request of the defendants, to provide professional construction services to the defendants at the Premises. 9. Pursuant to an agreement, plaintiff, as subcontractor, and the defendants, as contractor, entered into an agreement to provide professional construction services, including, but not limited to, labor and materials in connection with scaffolding, etc., among other things, for the Premises (the Subcontract ). 10. Plaintiff has performed its contractual obligations to the defendants by providing the requested professional construction services pursuant to a mutual agreement. 3 of 10

4 11. Defendants consented to the labor, materials, and services supplied and/or furnished by plaintiff in connection with construction work at the Premises. 12. Defendants have breached its contractual obligations by failing to make total payment to plaintiff for the Premises. 13. Upon information and belief, the amount still outstanding and due to plaintiff from the defendants for the Premises exceeds $69, Plaintiff has been damaged by the failure of the defendants to perform its contractual obligations for the Premises in an amount exceeding $69, Pursuant to Article 50 of the CPLR, plaintiff is entitled to prejudgment interest on the amount due from the defendants as a result of its failure to perform its contractual obligations to pay plaintiff for the Premises. AS AND FOR A SECOND CAUSE OF ACTION (Unjust Enrichment against the Defendants for the Premises) 16. Plaintiff repeats and re-alleges all of the allegations set forth in Paragraphs 1 through 15 of this Verified Complaint as if same were set forth fully here. 17. Defendants have been unjustly enriched by plaintiff s performance of professional construction services on behalf of the defendants for the Premises for which complete remuneration has not been received. defendants. 18. The services performed did enhance the value of the Premises to the benefit of the 19. Defendants consented to the labor, materials, and services supplied and/or furnished by plaintiff in connection with construction work at the Premises. 20. The fair and reasonable value of the amount still outstanding and due from the defendants for the Premises is in excess of $69, of 10

5 21. Defendants legally and equitably must be required to make payment to plaintiff in the amount in excess of $69, plus prejudgment interest for the Premises. AS AND FOR A THIRD CAUSE OF ACTION (Notice of Mechanic s Lien Foreclosure against the Defendants) 22. Plaintiff repeats and re-alleges all of the allegations set forth in Paragraphs 1 through 21 of this Verified Complaint as if same were set forth fully here. 23. The hereinbefore described professional construction services performed by plaintiff for the construction, renovation, and improvement of the Premises were performed and actually used for the improvement of the Premises. 24. The hereinbefore described professional construction services performed by plaintiff pursuant to a contract were performed and furnished with the knowledge and consent of the defendants with the understanding that there would be payment therefore. 25. On or about April 5, 2016, within eight months after the last item of labor and services were performed, plaintiff filed or caused to be filed in the Office of the Clerk of the County of New York, State of New York, an Notice Under Mechanic s Lien Law against the Premises in the amount of $50, (the Lien ). 26. Said Lien set forth and stated, among other things: (1) the name of the owner of the real property against whose interest therein a lien was claimed; (2) the nature of said interest; (3) the labor provided and materials furnished; (4) the agreed price and value of the labor provided and materials furnished; (5) date when the first labor was provided and first materials were furnished; (6) the date when the last labor was performed and materials were furnished; and (7) a description of the property sufficient for identification. 5 of 10

6 27. Said Lien was duly and complied in all respects with the Lien Law of the State of New York governing services, filing and acquiring of a mechanic s lien affecting private improvements. 28. Upon information and belief, said Lien of plaintiff was duly docketed in the lien docket kept by the Clerk of the County of New York for said purpose. 29. Thereafter, a true copy of said Lien was duly served according to the requirements of Section 11 of the Lien Law of the State of New York. 30. Pursuant to the Lien Law of the State of New York, an affidavit with proof of service of said Lien was filed with the Clerk of the County of New York within the statutory period after the notice of lien was filed. 31. The Lien complies in all respects with the requirements set forth in the Lien Law of the State of New York. 32. No part of said Lien has been paid, waived, cancelled or discharged by payment, and no prior proceeding either at law or in equity have ever been brought to recover and part of said lien or claim against which it is founded. 33. By reason and foregoing, plaintiff by filing and causing the docketing of the Lien, acquired a good and valid lien upon the interest of the defendants, upon information and belief, as the owner of the Premises in the sum of $50, Pursuant to its Lien, the plaintiff is entitled to payment in the amount of $50, and is entitled to enforce its Lien against the Premises, the defendants and any other claimants or affected parties. 6 of 10

7 AS AND FOR A THIRD CAUSE OF ACTION (Violation of Construction Trust Funds against the Defendants for the Premises) 35. Plaintiff repeats and re-alleges all of the allegations set forth in Paragraphs 1 through 34 of this Verified Complaint as if same were set forth fully here. 36. Plaintiff entered into written and/or verbal contract(s) with the defendants to perform work, labor, services, and to provide materials for the Premises. 37. Plaintiff fully performed all its obligations and duties under the aforementioned agreement(s) for the Premises. 38. Defendants consented to the labor, materials, and services supplied and/or furnished by plaintiff in connection with construction work at the Premises. 39. Upon information and belief, the defendants obtained monies and/or financing from entities currently unknown to plaintiff in excess of the monetary amount currently due plaintiff herein, or more specifically, the sum of $69, for the Premises. 40. At all relevant times herein, upon information and belief, the defendants exercised sole control and dominion over the monies of defendant corporations for the Premises. 41. A constructive trust was created by statute to the benefit of plaintiff as a contractor under New York Lien Law once said funds were available to the defendants for the Premises. 42. Upon information and belief, the defendants violated Section 79-a and 3A of the New York Lien Law by misappropriating said funds received which were to be held in trust for the benefit of subcontractors, including plaintiff, improving the property of the Premises at issue herein. 7 of 10

8 43. Plaintiff demands recovery of the constructive trust in the sum of $69, against the defendants and punitive damages to be determined at trial for violation of said constructive trust. WHEREFORE, plaintiff PALACE HOISTING & SCAFFOLDING CORP. OF NY hereby demands judgment against the defendants as follows: (a) On the First Cause of Action, a judgment against the defendants in an amount to be determined at trial, but estimated to be at least $50,309.12, together with applicable interest from January 8, 2016 and costs; (b) On the Second Cause of Action, a judgment against the defendants in an amount to be determined at trial, but estimated to be at least $50,309.12, together with applicable interest from January 8, 2016 and costs; (c) On the Third Cause of Action, the plaintiff demands judgment against the defendants as follows: (1) Decreeing that plaintiff, by filing its Notice under New York Mechanic s Lien Law has acquired a good and valid and subsisting lien in the amount of $50,309.12, together with interest from January 8, 2016; (2) Decreeing that plaintiff is entitled to enforce and foreclose its Lien against the Premises located at 570 Seventh Avenue, New York, New York (New York County Tax Map Block: 1012, Lot: 36); (3) Directing that the subject Premises be sold, as provided by law, and that out of the proceeds of such sale, plaintiff be paid the amount of the Lien as aforesaid, together with interest and with costs and disbursements of this action together with judgment against the defendants for any deficiency which may then remain; and (4) Decreeing that plaintiff and the defendants, and all persons claiming by, through or under them, be forever foreclosed of all equity redemption, or other lien, claim or interest in and to the Premises. (b) On the Fourth Cause of Action, a judgment against the defendants in an amount to be determined at trial, but estimated to be at least $50,309.12, together with applicable interest from January 8, 2016 and costs; (c) Awarding plaintiff the costs of this action, including reasonable attorneys fees and expenses, expert s fees and other disbursements; and (d) For such further and other relief as may be just and proper. 8 of 10

9 Dated: New York, New York June 14, 2016 WILSON & CHAN, LLP By: Henry C. Chan, Esq. Attorneys for Plaintiff PALACE HOISTING & SCAFFOLDING CORP. OF NY 733 Third Avenue, 16th Floor New York, New York Tel: (646) Fax: (646) Our File No.: of 10

10 STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK ) ATTORNEY VERIFICATION Henry C. Chan, Esq. an attorney duly admitted to practice law before the Courts of the State of New York, affirms the truth of the following under penalty of perjury. That I am associated with the law firm of WILSON & CHAN, LLP, attorneys for Plaintiff in the instant action, that I have read the foregoing SUMMONS AND VERIFIED COMPLAINT and know the content thereof, and that upon information and belief I believe the matters alleged therein to be true. The reason this Verification is made by deponent and not by Plaintiff is that the Plaintiff resides in a County other than the one in which Plaintiff s attorneys maintains their office. The source of deponent s information and grounds of my belief are communications, papers, reports, and investigations contained in this file. Dated: New York, New York June 14, 2016 Henry C. Chan, Esq. 10 of 10