ALL STATE INTERIOR DEMOLITION INC. WITH CROSS-CLAIMS

Transcription

1 FILED: NEW YORK COUNTY CLERK 11/03/ :45 AM INDEX NO /2016 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 11/03/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK Index No.: / _._ )( ANDREW JAMES INTERIORS, TI\JC., -against- Plaintiff, McGOVERN & COMPANY, LLC, STEPSTONE GROUP L.P., 885 THIRD OWNER LLC, CONSOLIDATED CARPET WORKROOM, LLC, AIR STREAM AIR CONDITIONING CORP., SOVERIGN MECHANICAL CORP., MODCO SUPPLY INC., CITY VIEW BLINDS OF N.Y. INC., ARCHITECTURAL FLOORING CARE, LLC, S&J ENTRANCE & WINDOW SPECIALISTS, INC., PAR PLUMBING CO. INC., ESS & VEE ACOUSTICAL CONTRACTORS, INC., GOTHAM GENERAL CARPENTRY INC., ALL STATE INTERIOR DEMOLITION INC., METROPOLITAN 885 THIRD AVENUE LEASEHOLD, LLC, U.S. SPECIALTY INSURANCE COMPANY, DANIEL G. McGOVERN AND "JOHN DOE ONE" THROUGH "JOHN DOE TEN", AMENDED ANSWER OF ALL STATE INTERIOR DEMOLITION INC. WITH CROSS-CLAIMS Defendants )( Defendant, All State Interiors Demolition, Inc. ("All State"), by its attorneys, Arthur 1. Semetis, P.e., as and for its Amended Answer to the Verified Complaint ("Complaint"), upon information and belief, as follows: 1. Denies knowledge or infolmation sufficient to form a belief as to the truth of the allegations set forth in paragraphs 1, 2,3,4,5, 6,7,8,9,10,11, 12, 13, 14,16, 17,18 and 19 of the Complaint. 2. Admits the truth of the allegations set forth in paragraph 15 of the Complaint. 1 1 of 9

2 AS AND FOR A RESPONSE TO THE FIRST CAUSE OF ACTION 3. Denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraphs 20, 21, 22, 23,24,25, 26 and 27 of the Complaint. 4. Admits the truth of the allegations set forth in paragraph 28 of the Complaint that All State has mechanic's lien upon the premises known as 885 Third Avenue, 3 pt Floor, New York, New York, Block: 1237, Lot: 1 ("Premises"), and denies knowledge or information sufficient to form a belief as to the truth of the remainder of the allegations set forth in paragraph 28 of the Complaint. AS AND FOR A RESPONSE TO THE SECOND CAUSE OF ACTION 5. Denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraphs 29, 30, 31 and 32 of the Complaint. AS AND FOR A RESPONSE TO THE THIRD CAUSE OF ACTION 6. Denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraphs 33, 34, 35, 36, 37, 38 and 39 of the Complaint. AS AND FOR A RESPONSE TO THE FOURTH CAUSE OF ACTION 7. Denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraphs 40, 41, 42, 43, 44,45, 46,47, 48, 49, 50, 51, 52, 53, 54, 55, and 56 of the Complaint. AS AND FORA FIRST AFFIRMATIVE DEFENSE 8. The Complaint fails to state a cause of action upon which relief may be granted. 2 2 of 9

3 CROSS-CLAIMS OF ALL STATE INTERIOR DEMOLITION INC. THE PARTIES 9. Defendant All State Demolition, Inc. ("All State") at all relevant times set forth herein, was and is a domestic corporation organized and existing under the laws of the State of New York with its principal place of business located at 230 Randolph Street, Brooklyn, New York That at all times hereinafter stated, upon information and belief, the defendant, McGovern & Company, LLC ("McGovern & Company"), was and still is a limited liability company formed and existing under the laws of the State of New York. 11. That at all times hereinafter stated, upon information and belief, the defendant, U.S. Specialty Insurance Company was and still is a foreign corporation authorized by the Superintendent of Insurance of the State of New York and has a principal place of business in New York at 600 Lexington Avenue, New York, New York AS AND FORA FIRST CROSS-CLAIM (Breach of Contract-McGovern & Company, LLC) 12. All State repeats, reiterates and realleges the allegations contained within paragraphs 9 through 11 as if fully set forth at length herein. 13. On or about December 28,2015, All State and McGovern & Company entered into an agreement ("Agreement") pursuant to which All State agreed to furnish to McGovern & Company all necessary labor, material, equipment and supervision for certain demolition work and improvements to the Premises ("Improvements"). 14. The labor and materials described above were furnished to McGovern & Company and were used in the performance of the Agreement, and in the Improvements. 3 3 of 9

4 15. All State has performed all of the terms, conditions and work under the Agreement on its part to be performed. 16. The total agreed upon price of the Agreement with change orders and extra work was $37,000.00, of which $37, has not been paid, although payment thereof has been duly demanded. 17. Defendant McGovern & Company has failed to perform its obligations under the Agreement, including, but not limited to, its obligation to pay All State the Agreement balance, which is fully due and owing. 18. By reason of the foregoing, All State has been damaged in an amount to be proven at trial, but not less than $37,000.00, together with statutory interest, plus costs, disbursements and attorney's fees. AS AND FORA SECOND CROSS-CLAIM (Account Stated-McGovern & Company LLC) 19. All State repeats, reiterates and realleges the allegations contained within paragraphs 9 through 18 as iffully set forth at length herein. 20. On or about December 28,2015, All State and McGovern & Company entered into a business transaction and agreed to a resulting account balance. 21. All State rendered a statement of this account balance to McGovern & Company, to which McGovern & Company did not object. More than thirty (30) days have elapsed since All State presented this account balance to McGovern & Company. 22. McGovern & Company has not paid any part of this account balance and there is now due and owing from McGovern & Company an account balance in the amount of not less than $37, of 9

5 23. By reason of the foregoing, an amount not less than the sum of $37, is justly due and owing to All State from McGovern & Company, together with statutory interest, plus costs, disbursements and attorney's fees. AS AND FOR A THIRD CROSS-CLAIM AGAINST McGOVERN & COMPANY LLC and FIRST CROSS-CLAIM AGAINST 885 THIRD OWNER, LLC (Quantum Meruit-McGovern & Company LLC, and 885 Third Owner, LLC) 24. All State repeats, reiterates and realleges the allegations contained within paragraphs 9 through 23, as if fully set forth at length herein. 25. Between December 28,2015 and January 4, 2016, All State at the special instance and request of McGovern & Company and 885 Third Owner, LLC, rendered certain work, labor, and services and furnished certain materials all for the agreed upon price of $37, McGovern & Company and 885 Third Owner, LLC agreed and promised to pay that sum, and that sum is due and owing for the value of work incorporated into the Premises and services rendered by All State. 27. There remains a balance due and owing to All State in the sum of $37, from McGovern & Company and 885 Third Owner, LLC, no part of which has been paid to All State, although payment thereof has been duly demanded from McGovern & Company and 885 Third Owner, LLC. 28. By reason of the foregoing, All State demands judgment in an amount not less than the sum of $37, from McGovern & Company and 885 Third Owner, LLC, together with statutory interest, plus costs, disbursements and attorney's fees. 5 5 of 9

6 AS AND FOR A FOURTH CROSS-CLAIM (Against Lien Discharge Bond- U.S. Specialty Insurance Company) 29. All State repeats, reiterates and realleges the allegations contained within paragraphs 9 through 28, as if fully set forth at length herein. 30. Defendant McGovern & Company and 885 Third Owner, LLC affirmatively procured the Improvements, specifically requested All State to provide the Improvements, affirmatively gave their consent concerning the Improvements to All State, assented to the Improvements with the expectations of receiving benefits therefrom, had knowledge of the Improvements, and indeed benefited from the Improvements provided by All State. 31. On or about July 29,2016, All State caused there to be filed with the Clerk of the County of New York, a Notice Under Mechanic's Lien Law in accordance with the Lien Law of the State of New York in due form against the Premises demanding that the sum of$37, is due and owing for work performed at and materials incorporated into the Premises pursuant to the Agreement ("Lien"). 32. The Lien was duly and timely filed and served, in both form and substance, as required by the N.Y. Lien Law and is incorporated herein by reference. A copy of the Lien is annexed hereto as Exhibit More than thirty (30) days have elapsed since the claims upon which this action is based were presented to McGovern and 885 Third Owner, LLC, and McGovern and 885 Third Owner, LLC have failed, neglected or refused to make an adjustment or payment thereof. 34. Neither the Lien, nor All State's claims asserted therein have been waived or discharged, in whole or in part, and no proceedings have heretofore been instituted for the foreclosure or enforcement thereof or for the recovery of the amounts due to All State, or for any part thereof. 6 6 of 9

7 35. Upon infonnation and belief, on or September 19, 2016, U.S. Specialty Insurance Company, as surety, together with Metropolitan 885 Third Avenue Leasehold LLC, as Principal, duly made, executed and acknowledged and delivered for value to All State, a Discharge of Mechanic's Lien Bond ("Lien Discharge Bond"), known as bond No , to discharge Lien, wherein U.S. Specialty Insurance Company agreed it shall well and truly pay any judgment that may be rendered against the Premises in any proceeding to enforce the Lien. A copy of the Lien Discharge Bond is annexed hereto at Exhibit All State has duly performed and complied with all the terms and conditions of the Agreement and the Lien Discharge Bond on its part to be perfonned. 37. By reason of the foregoing, All State has acquired a good, valid and subsisting lien against the Premises and demands judgment against U.S. Specialty Insurance Company the sum of$37,000.00, together with statutory interest, plus costs, disbursements and attorney's fees. WHEREFORE, All State Interior Demolition Inc. seeks judgment as follows: a) Dismissing the Complaint in its entirety; b) On its First Cross-Claim, judgment against McGovern & Company LLC in the amount of $37,000.00, together with statutory interest, plus costs, disbursements and attorney's fees; c) On its Second Cross-Claim against McGovern & Company LLC in the amount of $37,000.00, together with statutory interest, plus costs, disbursements and attorney's fees; d) On its Third Cross-Claim against McGovern & Company LLC and First Cross Claim against 885 Third Owner, LLC in the amount of $37,000.00, together with statutory interest, plus costs, disbursements and attorney's fees; 7 7 of 9

8 e) On its Fourth Cross-Claim against U.S. Specialty Insurance Company in the amount of $37,000.00, together with statutory interest, plus costs, disbursements and attorney's fees. Dated: New York, New York November 1, 2016 Arthur J. Semetis, P.c. By: Co ~~~--~--~--- antine T. T fas, Esq. Attorneys for All s: -ate Demolition Inc. 286 Madison Avehue, Suite 1801 New York, New York (212) of 9

9 VERIFICATION STATE OF NEW YORK ) ) SS.: COUNTY OF NEW YORK ) Constantine T. Tzifas, being duly sworn deposes and says: I am an attorney associated with the firm of Arthur J. Semetis, P.C., attorneys for defendant All State Demolition Inc. herein, that I has read the foregoing "Amended Answer of All State Demolition Inc. with Cross-Claims" and knows the contents thereof, and that the same is true to deponent's own knowledge, except as to the matters therein stated to be alleged upon information and belief, and that as to those matters deponent believes them to be true. The reason why deponent and not All State Demolition Inc. makes this verification is that All State Demolition Inc. maintains its offices outside the county w re the offices of Arthur 1. Semetis, P.C. are located. JONATHAN SAMTER Notary Public. State of New York NO.02SA Qualified in itv.i-:j.e~ unty,commission Expires July 23, 201 ~ 9 9 of 9