FILED: NEW YORK COUNTY CLERK 07/06/ :22 PM INDEX NO /2017 NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 07/06/2018

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK GREEN UNIVERSAL MECHANICAL INCORPORATED Plaintiff, FIRST AMENDED VERIFIED COMPLAINT Index No /2017 KEL-MAR INTERIORS, INC., AIRREFCO, CORP., FIDELITY AND DEPOSIT INSURANCE COMPANY OF MARYLAND, HIGH END NEW YORK ELECTRICAL CONTRACTING CORP., FERGUSON ENTERPRISES, INC., and "JOHN DOE No.1" No. 1 through "JOHN DOE No.10" the last 10 names being fictitious and unknown to plaintiff, the persons or parties if any having or claiming an interest in or lien upon the real property described in the complaint, Defendants. AIRREFCO, CORP., Third-Party Plaintiff, Third Party Index No. -against- -against- LYCEE FRANCAIS DE NEW YORK, NEW YORK FORTUNE GROUP LLC, DELTA CONNECTS INC., No.1" JIAN LONG USA INC., and "JOHN DOES No. through "JOHN DOE No.10," the last 10 names being fictitious and unknown to the plaintiff, the persons and parties if any having or claiming to have an interest in or lien upon the real property described in the complaint, Third-Party Defendants. Plaintiff, by its attorneys, as and for its complaint herein, respectfully shows and alleges to this Court: 1. That at all times hereinafter mentioned, plaintiff was and is a domestic corporation organized and existing under and by virtue of the laws of the State of New York with its principal place of business at 480 Austin Place, Building 1, Bronx, NY NYSBA ML-49 1 of 9

2 2. That upon information and belief at all times hereinafter mentioned, defendant Kel-Mar Interiors, Inc., (hereinafter referred to as "Kel-Mar") was and still is a domestic corporation organized and existing under and by virtue of the laws of the State of New York with its principal place for the transaction of business at 111 John Street, 4th Floor, New York, New York That upon information and belief at all times hereinafter mentioned Fidelity And Deposit Company of "Fidelity" Maryland (hereinafter "Fidelity") was and still is a surety duly authorized to transact business in the State of New York, with its principal place for the transaction of business at 600 Red Brook Blvd., Suite 600, Owings Mills, MD That upon information and belief at all times hereinafter mention Airrefco, Corp., was and still is a domestic corporation organized and existing under and by virtue of the laws of the State of New York. 5. That upon information and belief at all times hereinafter mentioned High End New York Electrical Corp., was and still is a domestic corporation organized and existing under and by virtue of the laws of the State of New York. 6. That upon information and belief at all times hereinafter mentioned Ferguson Enterprises, Inc., was and still is a foreign corporation organized and existing under and by virtue of the laws of the State of New Jersey. AS AND FOR A FIRST CAUSE OF ACTION 7. That at all times hereinafter mentioned Lycee Francais De New York (hereinafter referred to as "Owner" "Owner") was the owner in fee of certain premises in County ofnew York, City of New York, State ofnew York being more particularly bounded and described as Section 5, Block 1487, Lot 2 and known as 1416 York Avenue, New York, NY. 8. That at all times hereinafter mentioned and on or before the 4th day Of september 2015, Owner and Kel- PAGE 2 NYSBA ML-49 2 of 9

3 Mar entered into a contract for the improvement to the aforesaid real property. 9. That in furtherance of its contract with Owner, Kel-Mar entered into a contract with Airrefco to perform work to improve the aforesaid real property. 10. That on or before the 4th day of September 2015 Plaintiff entered into an agreement with Airrefco whereby Plaintiff was to supply and install sheet metal, piping, control wiring, insulation, valves and related ventilation system materials to the premises, all with the knowledge and consent of said owner. 11. Plaintiff begs leave to refer to the original of said agreement as the same may be produced upon the trial of this action for all of its terms and conditions. 12. That according to the terms and conditions of its agreement, plaintiff did agree to provide and install sheet metal, control wiring, insulation, valves and related ventilation system materials for the agreed sum of $62, That according to the terms and conditions of its agreement with Airrefco, plaintiff did complete its performance thereby earning the sum of $62, That no part of the aforesaid sum of 62, has been paid or credited except for the sum of $21, thereby leaving a balance due and owing in the sum of $41, no part of which has been paid to plaintiff although duly demanded. 15. That all of the aforedescribed labor provided and materials furnished by plaintiff to Airrefco were for construction of improvements on the within described premises and were furnished with the knowledge and consent of the aforesaid owner. 16. That pursuant to the Lien Law of the State of New York, plaintiff, on December 28, 2016, within eight months after the time when the last items of said materials were supplied and labor performed, duly filed PAGE 3 NYSBA ML-49 3 of 9

4 with the New York County Clerk, a Notice of Mechanic's Lien in writing and in proper and due form duly verified which claims a lien on the premises within described for the sum of $41, Said Notice of Lien set forth plaintiffs state of incorporation, principal office in New York, the owner of the real property against whose interest therein a lien was claimed, and the interest of the owner as far as known to plaintiff; the name of the person by whom the lienor was employed and to whom plaintiff as lienor furnished materials and performed labor; the materials furnished, the labor performed and the agreed price and value thereof; the unpaid balance; the time when the first and last materials were furnished and labor performed; the property subject to the lien with a description thereof to permit identification; and said Notice of Lien contained all the statements required by and in all respects duly complied with the statutes of the State of New York. 18. Pursuant to Lien Law 11 and 11-b following the filing of said lien, Plaintiff served a copy of said lien upon the owners, tenant and contractor with whom the construction contract was made. Pursuant to Lien Law 11 and 11-b an affidavit with proof of service as to the certified mailing of copies of the aforesaid lien was filed with the County Clerk within thirty-five (35) days after the notice of lien was filed. 19. That by reason of the foregoing and by the filing and docketing of said Notice of Lien and said affidavits of service regarding the Notice of Lien, acquired a good, valid and subsisting lien on the within described premises. 20. Upon information and belief, there is a sum of money due and owing from Kel-Mar to Airrefco in excess of plaintiff's claim herein. 21. On or about February 8, 2017, Kel-Mar as principal, and the defendant, Fidelity, as surety, duly made, executed and delivered an undertaking in writing in due form to the Clerk of New York County in the sum of Forty Five Thousand Five Hundred and Sixteen 19/00 Dollars ($45,516.16) conditioned for the payment PAGE 4 NYSBA ML-49 4 of 9

5 of any judgment that may be rendered against said property in any action to enforce the aforesaid Notice of Lien, and the said undertaking was filed with the County Clerk and an order was entered and filed discharging the said Notice of Lien and directing its cancellation. 22. The defendant Fidelity is surety on the undertaking to discharge plaintiffs Notice of Lien and for that reason is made a party hereto and a personal judgment is asked against it. 23. Upon information and belief, the defendants High End New York Electrical Contracting Corp., and Ferguson Enterprises, Inc., each have or claim to have a lien upon the real property. 24. Upon information and belief the lien of Green Universal Mechanical Corporation, plaintiff herein, is paramount and superior to the liens filed by all defendants. AS AND FOR A SECOND CAUSE OF ACTION 25. Plaintiff repeats and reiterates each and every allegation contained in plaintiff's complaint and marked as paragraphs 1 through 24 as if more fully at length set forth. 26. That hereto and on or about September 4, 2015 plaintiff, at the special instance and request of defendant Airrefco provided work labor and services and goods wares and materials for the agreed price and reasonable value of $62, That no part of the said sum of $$62, has been paid to plaintiff by defendant Airrefco except for the sum of $21, leaving a balance due and owing in the sum of $41, no part of which has been paid by defendant Airrefco despite due demand therefore. AS AND FOR A THIRD CAUSE OF ACTION 28. Plaintiff repeats and reiterates each and every allegation contained in plaintiff's complaint and marked as paragraphs 1 through 27 as if more fully at length set forth. 29. That hereto and on or about September 4, 2015 plaintiff, at the special instance and request of PAGE 5 NYSBA ML-49 5 of 9

6 defendant Airrefco entered into a contract to provided work labor and services and goods wares and materials for the agreed price and reasonable value of $62, That no part of the said sum of $$62, has been paid to plaintiff by defendant Airrefco except for the sum of $21, leaving a balance due and owing in the sum of $41, no part of which has been paid by defendant Airrefco despite due demand therefore. AS AND FOR A FOURTH CAUSE OF ACTION 31. Plaintiff repeats and reiterates each and every allegation contained in plaintiff's complaint and marked as paragraphs 1 through 30 as if more fully at length set forth. 32. That hereto and on or about July 7, 2016 an account was stated between plaintiff and defendant Airrefco and upon such account stated a balance of $41, was due and agreed to be due by said defendant to plaintiff no part of which has been paid despite due demand therefore. AS AND FOR A FIFTH CAUSE OF ACTION AGAINST DEFENDANT KEL-MAR INTERIORS, INC. 33. Plaintiff repeats and reiterates each and every allegation contained in plaintiff's complaint and marked as paragraphs 1 through 32 as if more fully at length set forth. 34. That hereto and on or about July 7, 2016, plaintiff, at the special instance and request of defendant Kel- Mar Interiors, Inc., performed work at the project. 35. The agreed sum and reasonable value of the work performed by plaintiff for Kel-Mar Interiors, Inc., was $9, That no part of the said sum of $9, has been paid by defendant Kel-Mar Interiors, Inc., despite due demand therefore. WHEREFORE, Plaintiff demands judgment: PAGE 6 NYSBA ML-49 6 of 9

7 A: On its first cause of action as follows: 1. That plaintiff be determined and adjudged to have a valid and subsisting lien upon the interest of the owner in the real property above-described until the time of its cancellation and discharge by the filing of the lien as aforesaid. 2. That the amount due upon plaintiffs lien and claim be ascertained and adjudged. 3. That the plaintiff have judgment for the enforcement of said lien against said real property, in form only for the purposes of satisfying the condition of said bond. 4. That the said surety be declared liable by virtue thereof and that have judgment in the sum of $41, against said surety; 5. That plaintiff have judgment in the sum of $41, with interest thereon from the 7th day of July, B: On its second cause of action against defendant Airrefco, Corp., in the sum of $41, with interest thereon from July 7, 2016; C: On its third cause of action against defendant Airrefco, Corp., in the sum of $41, with interest thereon from July 7, 2016; D: On its fourth cause of action against defendant Airrefco, Inc., in the sum of $41, with interest thereon from July 7, 2016; E: On its fifth cause of action against defendant Kel-Mar Interiors, Inc., in the sum of $9, with interest thereon from July 7, 2016; all together with the costs and disbursements in this action. Howard M. Katz, Esq. Attorney of Plaintiff 225 Broadway Suite 1203 New York, NY (212) PAGE 7 NYSBA ML-49 7 of 9

8 I, the undersigned, an attorney admitted to practice in the courts of New York State, affirm that I am the attorney of record for plaintiff in the within action; I have read the foregoing amended complaint and know the contents thereof; the same is true to my own knowledge, except as to the matters therein alleged to be on information and belief, and as to those matters I believe it to be true. The reason this verification is made by me and not by plaintiff is because plaintiff is a domestic corporation and does not maintain its office in the County where your affiant maintains his office. The grounds of my belief as to all matters not stated upon my own personal knowledge are as follows: books and records in my possession; conversations with client. The undersigned affirms that the foregoing statements are true, under the penalties of perjury. Dated: New York, N.Y. n July 6, of 9

9 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK Index No. GREEN UNIVERSAL MECHANICAL INCORPORATED Plaintiff, -against- KEL-MAR INTERIORS, INC., AIRREFCO, CORP., FIDELITY AND DEPOSIT INSURANCE COMPANY OF MARYLAND, HIGH END NEW YORK ELECTRICAL CONTRACTING CORP., FERGUSON ENTERPRISES, INC., and "JOHN DOE No.1" through "JOHN DOE No.10" the last 10 names being fictitious and unknown to plaintiff, the persons or parties if any having or claiming an interest in or lien upon the real property described in the complaint, Defendants. FIRST AMENDED VERIFIED COMPLAINT Howard M. Katz, Esq. Attorney for Plaintiff 225 Broadway, Suite 1203 New York, NY Signature Rule a) 9 of 9