FILED: NEW YORK COUNTY CLERK 11/07/ :58 PM INDEX NO /2014 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 11/07/2016

Transcription

1 FILED: NEW YORK COUNTY CLERK 11/07/ :58 PM INDEX NO /2014 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 11/07/2016 SUPRE~IE COURT OF THE STATE OF NEW YORK COUNTY OF CROWN CONTAINER CO., INC., PlamtifD Petttloner, - against - Index No /2014 NOTICE OF COMMENCEMENT OF ACTION SUBJECT TO MANDATORY ELECTRONIC FILING PLEASE TAKE NOTICE that the matter captioned above, which has been commenced filing of the acco!upanying documents with the County Clerk, is subject to mandatory electronic filing pursuant to Section bb otthe Rules for the Trial Courts. This notice is being served as required by Subdivision (b) (3) of that Section. The New York State Courts Electronic Filing System ("NYSCEF") is designed for the electronic filing of documents with the County Clerk and the court and for the electronic service ofthase documents, court documents. and coun notices upon counsel and self-represented panies. Counsel and/or parties who do not notify the coun of a claimed exemption (see below) as required by Section bb( e) must inunediately record their representation within the e-filed matter on the Consent page in NYSCEF. Failure to do so may result in an inability to receive electronic notice of document filings. Exemptions from mandatory e.filing are limited to: 1) attorneys who certify in good faith that they lack the computer equipment and (along with all employees) the requisite knowledge to comply; and 2) self-represented parties who choose not to participate in e-filing. For additional information about electronic filing, including access to Section bb, consult the r-.tyscefwebsite at the ~ryscef Resource Center at or efile@courts.state.ny.us. Dated: PETER SULLIVAN (N,moi NEW YORK. NY.l0003 (Address) SULLIVAN P.C. (Firm Name) To:

2 [FILED: NEW YORK COUNTY CLERK 12/08/ :'24 PM] 12/08/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK CROWN CONTAINER CO., IKC., Index No.: -against- Plaintiff, NICHOLAS RUTIGLIANO, TRI-STi\TE ENVIRONMENTAL SERVICES INC., 5 PENN PLAZA LLC, SUMMONS The basis ofthc venue designated is the principal place of business of Defendant Defendants. To the Above Named Defendants: YOU ARE HEREBY SUl\'L.'\10NED and required to serve upon Pfaintifrs attorney an answer to the complaint in this action within twenty (20) days after the service of this summons, exclusive of the day of service, or within thirty (30) days after service is complete if this summons is not personally delivered to you within the State of New York. In case of your failure complaint. Dated: New York, New York December 2, 2014 By: sf Peter Sullivan Peter Sullivan Attorneys/or the Plaintiff 7 East 20 th Strcet New York, New York (212)

3 To: NICHOLAS RUTIGLIANO 5 PENN PLAZA LLC 5 PENN PLAZA - 24" Floor NEW YORK, NEW YORK TRI-STA TE ENVIRONMENTAL INC. JASMINE KHAN 5 KUEN AVENUE BETHPAGE, NEW YORK PENN PLAZA LLC 5 PENN PLAZA - 24th Floor NEW YORK, NEW YORK 10001

4 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK CROWN C001TAINER CO., INC., Index No. -against- Plaintiff, CO~IPLAINT NICHOLAS RUTIGLIANO, TRI-STATE ENVIRO:--lMENTAL SERVICES INC" 5 PENN PLAZA LLC, Defendants. The Plaintiff, complaining of the Defendants, [all names not cappcd[]nicholas RUTIGLIANO, TRI-STATE ENVIRONMENTAL SERVICES INC., 5 PEl\'N PLAZA LLC, by SULLIVAN, P.C., its attorneys, alleges as fohows: PARTIES 1. At all times hereinafter mentioned, Plaintiff, CRO\VN CONTAINER CO., INC. ("Crown"), was and still is a domestic corporation, duly organized and existing under and by virtue of the laws of the State of New York with offices at 75 Amby Avenue, Plainview, New York, Upon information and belief, at all times hereinafter mentioned, the Defendant NICHOLAS RUTIGLIANO ("Rutigliano") was and still is the president of TRI-STATE E:--IVIRONMENTAL SERVICES, INC. 3. Upon information and belief, at all times hereinafter mentioned, the Defendant TRI-STATE ENVIRONME:--ITAL SERVICES, 101C. ("Tri-State") was and still is a domestic business corporation duly organized and existing under and by virtue of the laws of the State of

5 Nev,' York with a principal place of business located at 5 Kuen Avenue, Bethpage, New York Upon information and belief, at all times hereinafter mentioned, the Defendant 5 PE~lN PLAZA LLC. was and still is a domestic limited liability company duly organized and existing under and by virtue of the laws of the State of Ne\v York with a principal place of business located at 5 Penn Plaza. 24 Floor, New York, New York FACTS 5. The Plaintiff, Crown, is a company which engages in, among other activities, the collection and carting of trash and recyclables, and is a licensed carter with the Ne\v York City Business Integrity Commission. 6. In or prior to November 2, 2007, Crown entered into a contract with the Defendant. Tri-State, for waste carting services at the location of Defendant 5 Penn Plaza LLC, located at 5 Penn Plaza, New York, New York ("Contract"). Tri-State is a broker that procured Crown's carting service on behalf of and for the benefit of Defendant 5 Penn Plaza" 7. In addition to the foregoing, on November 2, 2007, Defendant, Nicholas Rutigliano, president of Tri-State. signed a personal guarantee stating that he would be "personally responsible for all fees due to Crown Container, in case of non-payment of invoices from my company and understand that in case of non-payment I \vill be responsible for any collection fees or attorney fees." ('"Guarantee"). 8. Pursuant to the Contract and beginning in January of2014 and continuing through November 2014 Cro\\"n provided waste carting services to the Defendant, 5 Penn Plaza's, aforementioned place of business. Throughout that time, the Defendant. 5 Penn Plaza. accrued

6 charges in the amount over fifty thousand dollars (5450,000.00) plus interest ("Outstanding Balance"). 9. To date, the Defendants have failed to make any payments toward the Outstanding Balance despite receipt of carting services from Crown over the previous eleven (II) months. AS AXD FOR A FIRST CAUSE OF ACTION: BREACH OF COXTRACT Plaintiff repeats and re-alleges each and every allegation set forth above with the same force and effect as set forth herein. 11. The Contract provided that Crown would be paid for all carting services provided to Defendant, 5 Perm Plaza commencing in January The Defendants repudiated the Contract, breached its material tenns and it further indicated that it would fail to comply with its continuing obligations pursuant to the contract. 12. Crown acted in full compliance with the Contract and all applicable laws in perfonning under the Contract, refused the Defendants' purported tennination and demanded that the Defendants cure their breach, but the Defendants have refused. At all times relevant herein CrO\vn was ready, willing and able to perfonn under the Contract. 13. The Defendants' failure to pay and termination constitutes a material breach of the Contract and the whole thereof, accelerating the due date of all pa)111ents under the contract and causing Crown damage in the amount of the Outstanding Balance. As such, Crown is entitled to judgment against the Defendants in the amount of the Outstanding Balance together with interest at the maximum legal rate.

7 AS AND FOR A SECOND CAliSE OF ACTION: FRAUD 14. Plaintiff repeats and fe-alleges each and every allegation set forth above with the same force and effect as set forth herein. IS. Defendant, Nicholas Rutigliano, president of Tn-State, signed a guarantee stating that he would be "personally responsible for all fees due to Crown Container, in case of payment of invoices from my company and understand that in case of non-payment I will be responsible for any collection fees or attorney fees." ("Guarantee"). CrO\vn relied on this representation when it entered into the Contract and began providing services. The Defendants owed a special duty to Crown. 16. The Defendants knew these representations to be false when made, and thereby defrauded Crown into entering into the Contract and providing such services. 17. Defendant 5 Penn Plaza LLC represented to Crown, separate and apart from any other agreements, that it would retain the services of Cro\\'n and pay for services provided. Crown relied on this representation when it entered into the Contract and began providing services. Defendant 5 Penn Plaza LLC owed a special duty to Crown. 18. Defendant 5 Penn Plaza LLC knew these representations to be false when made, and thereby defrauded Crown into entering into the Contract and providing such services. 19. Solely due to the reliance by Crown on the false, fraudulent and untrue statements of the Astoria Defendants. Crown has been damaged in the amount of the Outstanding Balance.

8 AS AND FOR A THIRD CAUSE OF ACTION: QUANTUMl\IERUIT 20. Plaintiff repeats and re-alleges each and every allegation set forth above with the same force and effect as set forth herein. 21. The Defendants knew that the Crown was rendering services with respect to the said Defendants. and that the Crown expected for all services rendered as per the tenns of the Contract. 22. Crown undertook the performance of services in good faith, and \vith the expectation that would be paid for all services rendered pursuant to the terms of the Contract. 23. Despite the Contract, the Defendants have failed to pay for the services rendered, although duly demanded. 24. Crown has no adequate remedy at law. AS AND FOR A FOURTH CAUSE OF ACTION: UNJUST ENRICHMENT 26. Plaintiff repeats and re-alleges each and every allegation set forth above with the same force and effect as set forth herein. 27. The Defendants have received a benefit from the Plaintiffs rendering of services, without having paid the total amount due for such services. As such. under principles of equity and good conscience, the Plaintiff is entitled to payment from the Defendant for the provided services in the sum the Outstanding Balance.

9 AS AJ'(D FOR A FIFTH CAUSE OF ACTIO:>!: ACCOUl\'T STATED 28. Plaintiff repeats and fe-alleges each and every allegation set forth above with the same force and effect as set forth herein. 19. Crown duly submitted invoices to the Defendants for the services provided. The Defendants received the Crown's invoices, and has failed to object to said invoices within a reasonable amount of time. The Defendants have accepted those invoices as accurate and has promised to pay same. 30. Wherefore, by reason of the foregoing, Crown demands judgment against the Defendants in an amount estimated to be not less than the Outstanding Balance. Plaintiff demands the following relief: 1. On the First Cause of Action: Judgment against Nicholas Rutigliano, 5 Penn Plaza and Tri-State Environmental Inc., jointly and severally, in an amount estimated to be not less than the Outstanding Balance together with interest at the maximum legal rate; Judgment against Nicholas Rutigliano, 5 Pelill Plaza and Tri-State En-viromnental Inc., jointly and severally. for Plaintiff's costs. disbursements and reasonable attorney's fees incurred in the prosecution of this action; Such other and further relief as this Court deems just. equitable, and proper. On the Second Cause of Action: Judgment against Nicholas Rutigliano, 5 Penn Plaza and Tri-State Enviromnental Inc.. jointly and severally, in an amount estimated to be not

10 less than the Outstanding Balance together with interest at the maximum legal rate; 11. Judgment against Nicholas Rutigliano, 5 Penn Plaza and Tn-State Environmental Inc., jointly and severally, for Plaintiffs costs, disbursements and reasonable attorney's fees incurred in the prosecution of this action; 111. Such other and further relief as this Court deems just, equitable, and proper On the Third Cause of Action: Judgment against Nicholas Rutigliano, 5 Penn Plaza and Tn-State Environmental Inc., in an amount estimated to be not less than the Outstanding Balance together \vith interest at the maximum legal rate; 11. Judgment for Plaintiffs costs, disbursements and reasonable attorney's fees incurred in the prosecution of this action; 111. Such other and further relief as this Court deems just, equitable, and proper. IV. On the Fourth Cause of Action: Judgment against Nicholas Rutigliano, 5 Penn Plaza and Tri-State Environmental Inc., in an amount estimated to be not less than the Outstanding Balance together with interest at the maximum legal rate; 11. Judgment for Plaintiffs costs, disbursements and reasonable attorney's fees incurred in the prosecution of this action; 111. Such other and further relief as this Court deems just, equitable, and proper. V. On the Fifth Cause of Action:

11 .. Judgment against Nicholas Rutigliano, 5 Penn Plaza and Tri.State Environmental Inc., in an amount estimated to be not less than the Outstanding Balance together with interest at the maximum legal rate; incurred in the prosecution ofthis action; Such other and further relief as this Court deems just, equitable, and proper. Dated: New York, New York December 2, 2014 SULLIVAN, P.C. By: sl Peter Sullivan Peter Sullivan Attorneys for the Plaintiff 7 East 20 Street New York, New York (212)