FILED: NEW YORK COUNTY CLERK 01/23/2012 INDEX NO /2011 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 01/23/2012. Plaintiff, Defendants.

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1 FILED: NEW YORK COUNTY CLERK 01/23/2012 INDEX NO /2011 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 01/23/2012 MIN-WDF-Supelemental Summons 2. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK... MINELLI CONSTRUCTION CO., INC., Plaintiff, X Index No /11 Date Purchased: 5/23/11 Plaintiff designates New York County as the place of trial The basis of venue is pursuant to contract provision - against - WDF INC., NEW YORK CITY TRANSIT AUTHORITY, TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, FIDELITY & DEPOSIT COMPANY OF MARYLAND, and NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURG, PA, SUPPLEMENTAL SUMMONS Plaintiff resides at 300 Corporate Plaza Islandia, New York Defendants.... To the above named Defendants: X YOU ARE HEREBY SUMMONED to answer the Amended Verified Complaint in this action and to serve a copy of your Answer on the Plaintiff's attorney(s1 within 20 days after the service of this Summons, exclusive of the day of service (or within 30 days after the service is complete if this Summons is not personally delivered to you within the State of New York); and 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: October /7, F NfSV Minelli Construckiod Co\, In&. r Old Country Road[- kuite 660 nwyoflk Mineola, New York (516) PLLC Defendants' Addresses: WDF, Inc. 30 North MacQuesten Parkway Mount Vernon, NY Supreme Court Records OnLine Library - page 1 of 14

2 New York City Transit Authority 130 Livingston Street Brooklyn, NY Travelers Casualty and Surety Company of America One Tower Square Hartford, CT Fidelity & Deposit Company of Maryland 1400 American Lane Schaumburg, IL National Union Fire Insurance Company of Pittsburgh, 175 Water Street New York, NY Supreme Court Records OnLine Library - page 2 of 14 2

3 MIN-WDF-Ame?ded Complaint SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X MINELLI CONSTRUCTION CO., INC., Index No /11 -against - Plaintiff, AMENDED VERIFIED COMPLAINT WDF INC., NEW YORK CITY TRANSIT AUTHORITY, TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, FIDELITY & DEPOSIT COMPANY OF MARYLAND, and NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURG, PA, Plaintiff, Minelli Construction Co., Inc., by its attorneys, Law Inc., alleges as follows: 1. Plaintiff, Minelli Construction Co., Inc. (hereinafter referred to as "Minellill), was at all times relevant hereto, and still is a corporation organized and existing under and by virtue of the laws of the State of New York, with its principal place of business located at 300 Corporate Plaza, Islandia, New York Upon information and belief, Defendant, WDF Inc. (hereinafter referred to as lfwdf1l) was, at all times relevant hereto, and still is a corporation organized and existing under and by virtue Of the laws of the State of New York, with its principal place of business located at 30 North MacQuesten parkway, Mount Vernon, NY Upon information and belief, the Defendant, New York City Transit Authority (hereinafter ref erred to as the "NYCTA") was, and still is a body corporate and politic constituting a public Supreme Court Records OnLine Library - page 3 of 14

4 corporation, with an office located at 130 Livingston Street, Brooklyn, NY Upon information and belief, the Defendant, Travelers Casualty and Surety Company of America (hereinafter referred to as "Travelersf1) was, at all times relevant hereto, and still is a Connecticut corporation authorized to conduct business as a surety in the State of New York, having a place of business at One Tower Square, Hartford, CT Upon information and belief, the Defendant, Fidelity & Deposit Company of Maryland (hereinafter referred to as IIF&D") was, at having a place of business at 1400 American Lane, Schaumburg, IL Upon information and belief, the Defendant, National Union Fire Insurance Company of Pittsburgh, PA (hereinafter referred to as "National Union Fire") was, at all times relevant hereto, and still is a New York corporation authorized to conduct business as a surety in the State of New York, having a place of business at 175 Water Street, New York, NY AS AND FOR A FIRST CAUSE OF ACTION AGAINST DEFENDANT WDF 7. Upon information and belief, prior to October 13, 2009, Defendant WDF entered into a written public improvement contract (the "Contractlt) with the New York City Transit Authority known as 114/5 Fulton Street Station Rehabilitation & Dey Street Headhouse," Contract #A (hereinafter referred to as the flprojectlf). 2 Supreme Court Records OnLine Library - page 4 of 14

5 8. Thereafter, on or about October 13, 2009, and in connection with the aforesaid Contract, Defendant WDF entered into an agreement with Minelli (hereinafter referred to as the "Subcontract") wherein and whereby Minelli was to perform certain chemical grout and restoration of concrete work at the Project for the contract sum of $580, Plaintiff incorporates said Subcontract by reference and begs leave to refer to the original Subcontract at the trial of this action for its true terms and conditions and legal import. 9. Minelli duly commenced the performance of its work under the Subcontract. 10. WDF breached the parties' Subcontract by, inter alia, without notice or authorization, performing items of work which were within the scope of Minelli's Subcontract, improperly sending Minelli notices to cure, failing to pay Minelli monies earned under the Subcontract and ultimately wrongfully terminating Minelli's Subcontract. 11. That as of the date of WDFfs wrongful termination of Minellils Subcontract, Minelli had completed work having a scheduled value of $184, WDF made payments to Minelli totaling $22,500.00, leaving a balance due and owing to Minelli for work completed of $161, No part of said $161, sum has been paid although duly demanded. 14. In addition, by virtue of its wrongful actions and breaches of contract, WDF prevented Minelli from performing $395, in Subcontract work. Supreme Court Records OnLine Library - page 5 of 14 3

6 15. WDF's actions deprived Minelli of the profit it would have earned by performing this work in the sum of approximately $158, WDF is liable to Minelli for the contract balance due Minelli on the work performed in the sum of $161, and for the lost profits on the work WDF prevented Minelli for performing in the sum of approximately $158, or the total sum of $319, together with interest from April 23, 2011 and earlier dates. AS AND FOR A SECOND CAUSE OF ACTION AGAINST DEFENDANT WDF 17. Plaintiff repeats and realleges each and every allegation set forth in Paragraphs rrlll through l1l6l1 of the Complaint with the same forth and effect as if fully set forth at length herein. 18. At the special instance and request and/or direction of Defendant WDF, between approximately October 13, 2009 and April 23, 2011, Minelli performed work, labor and services for and furnished materials to WDF at the Project in furtherance of WDF's Contract with the New York City Transit Authority having an agreed price and reasonable value of $184,318.50, no part of which has been paid except the sum of $22,500.00, leaving a balance due and owing to Minelli in the sum of $161, demanded. 19. No part of said $161, has been paid although duly 20. By reason of the foregoing, WDF is liable to and owes Minelli the sum of $161,818.50, plus interest from April 23, 2011 and earlier dates. Supreme Court Records OnLine Library - page 6 of 14 4

7 AS AND FOR A THIRD CAUSE OF ACTION AGAINST DEFENDANTS WDF, NYCTA, AND TRAVELERS 21. Plaintiff repeats and realleges each and every allegation set forth in Paragraphs Ill" through 1'2011 of the Complaint with the same force and effect as if fully set forth at length herein. 22. At the special instance and request of WDF, between approximately October 13, 2009 and April 23, 2011, Minelli furnished materials to, and performed work, labor and services on the Project, as Subcontractor of WDF, for the agreed price and reasonable Value Of $161,818.50, as more fully set forth in a certain Notice Under Mechanic's Lien Law for Account of Public Improvement, a copy of which is annexed hereto as Exhibit fla1l. 23. No part of the aforesaid sum of $161, was paid by Defendant WDF to Minelli. 24. WDF's failure to timely pay Minelli constituted a breach of the parties' Contract. 25. By reason of the foregoing, there is a balance due and Owing from WDF to Minelli in the amount of $161, payment of which was heretofore duly demanded and refused, and WDF was actually indebted therefore to Minelli at the time of the filing of the aforesaid Notice Under Mechanic's Lien Law for Account of Public Improvement. 26. The said materials and the said work, labor and services were furnished and performed in and for the Project, pursuant to the Contract between WDF and the NYCTA and were furnished for and were actually applied in and about the Project with the actual and/or Supreme Court Records OnLine Library - page 7 of 14 5

8 constructive knowledge and/or consent of the NYCTA, as owner of the Project. 27. In pursuance of and in conformity with the Lien Law of the State of New York, on or about May 19, 2011, Plaintiff caused to be duly filed a Notice Under Mechanic's Lien Law with the New York City Transit Authority, together with proof of service by certified mail, return receipt requested on WDF, in due form claiming the sum of $161,818.50, being the amount owed to Minelli as set forth hereinabove, against the interest of WDF, as Contractor, in monies due or to become due under the aforementioned NYCTA Project, Contract #A Said Notice Under Mechanic's Lien Law was duly filed in form and in substance pursuant to the provisions of the Lien Law. 28. After entering into the Contract with NYCTA, WDF commenced performance of its work and at the time of the filing of the Lien by Plaintiff, WDF had duly performed the Contract and had so far completed same so as to become entitled to payments on account of the Contract and that there were then monies due and owing to WDF pursuant to the Contract in a sum in excess of Plaintiff's claim and all other claims equal to or superior to Plaintiff's claim, if any. 29. At the time of the filing of said Lien, thirty (30) days had not elapsed since the completion of the work at the Project and the acceptance of same by the NYCTA. 30. The Lien has not been paid, waived, cancelled or discharged in whole or in part, and no proceedings either in law or equity have been brought for enforcement or foreclosure of the Lien or to recover upon the claim of the Plaintiff resulting or arising from the Lien Supreme Court Records OnLine Library - page 8 of 14 6

9 except in the following respect: the above described Lien was discharged by the filing with the New York City School Construction Authority, of an Undertaking in the sum of $178, executed by WDF as Principal, and Travelers, as Surety, as prescribed in Section 21 of the Undertaking is annexed hereto as Exhibit 'IB". 31. The aforesaid Undertaking (hereinafter referred to as the "Lien Discharge Bond") filed with the NYCTA provides that WDF, as Principal and Travelers, as Surety, are held and firmly bound unto the New York City School Construction Authority, as obligee, in the sum of $178, The Lien Discharge Bond further states: NOW, THEREFORE, the condition of this obligation is such that if the above bound WDF Inc. its administrators, successors and assigns shall well and truly pay any judgment which may be recovered in an action to enforce the lien, not exceeding the sum of One Hundred Seventy Eight Thousand and OO/lOO ($178,000.OO) Dollars then this obligation be void; otherwise to remain in full force and effect, Bond issued by the Defendants and is entitled to have its claim set forth herein satisfied from such undertaking. 33. Upon information and belief, there are no persons or due and/or to become due under the Contract between WDF and the NYCTA. 34. Upon information and belief, Minelli's claim and lien is superior to those claims and liens of all persons who have or claim to Supreme Court Records OnLine Library - page 9 of 14 7

10 have some lien or interest in or upon the funds due and/or to become due under the Contract between WDF and the NYCTA. 35. More than thirty (30) days have elapsed since the claim upon which this action is based has been presented to the NYCTA and it has failed, neglected and refused to make an adjustment or payment thereon for more than thirty (30) days after its presentment. 36. By reason of the foregoing, Plaintiff acquired a good and valid lien in the sum of $161, plus interest upon the monies due or to become due to Defendant WDF, as Contractor, under NYCTA Contract No. A which WDF entered into with the Defendant NYCTA, and there is now due and owing from Defendants, WDF as principal, and Travelers, as surety, the sum of $161, together with interest thereon from April 23, 2011 and earlier dates. AS AND FOR A FOURTH CAUSE OF ACTION AGAINST DEFENDANTS WDF, F&D AND NATIONAL UNION FIRE 37. Plaintiff repeats and realleges each and every allegation set forth in Paragraphs 111" through ft36tt of the Complaint with the same forth and effect as if fully set forth at length herein. 38. Upon and information and belief, on or about July 27, 2009, Defendant WDF, as principal, and Defendants F&D and National Union Fire, as sureties, executed a Labor and Material Payment Bond (hereinafter referred to as the "Payment Bond") wherein and whereby WDF, F&D and National Union Fire undertook to promptly pay all moneys due to all persons furnishing labor and materials to WDF in the prosecution of the work provided for in the Contract. A copy of the Payment Bond is annexed hereto as Exhibit ac'r. Supreme Court Records OnLine Library - page 10 of 14 8

11 39. Minelli is an intended beneficiary of the Payment Bond issued by the Defendants; is a claimant who furnished labor and materials to WDF in the prosecution of WDFIs work provided for in the Contract, as is more fully set forth hereinabove; and is entitled to have its claim set forth herein satisfied from such undertaking. 40. The work, labor and services and materials furnished by Minelli were in furtherance of the prosecution of WDF's work under its Contract with NYCTA. 41. Minelli has complied with all conditions of the Payment Bond except insofar as and to the extent, if any, said compliance has been prevented, interfered with or waived, or to the extent the Defendants are estopped from asserting non-compliance. 42. By reason of the foregoing, there is now due and owing to Plaintiff from WDF, as principal, and from F&D and National Union Fire, as sureties, under the aforesaid Payment Bond, the sum of $161, together with interest thereon from April 23, 2011 and earlier dates and attorney's fees. 43. That at least ninety (90) days have expired since the day on which the last of Plaintiff's labor was performed and/or material was furnished for which this claim is being made and less than one (1) year has expired from the date on which final payment under the Claimant's Subcontract became due. WHEREFORE, Plaintiff Minelli Construction Co., Inc., demands Judgment against the Defendants WDF Inc., New York City Transit Authority, Travelers Casualty and Surety Company of America, Fidelity Supreme Court Records OnLine Library - page 11 of 14 9

12 & Deposit Company of Maryland, and National Union Fire Insurance Company of Pittsburg, PA, as follows: a. On the First Cause of Action against WDF Inc. in the sum of $319, plus interest from April 23, 2011 and earlier dates. b. On the Second Cause of Action against WDF Inc. in the sum of $161, plus interest from April 23, 2011 and earlier dates. C. On the Third Cause of Action against WDF Inc., New York City Transit Authority, and Travelers Casualty and Surety Company of America in the sum of $161, plus interest from April 23, 2011 and earlier dates. d. On the Fourth Cause of Action against WbF Inc., Fidelity & Deposit Company of Maryland, and National Union Fire Insurance Company of Pittsburg, PA, in the sum of $161, plus interest from April 23, 2011 and earlier dates. e. That the Plaintiff have such other and further relief which as to this Court may seem just, proper and equitable. f. That the Plaintiff be awarded costs, reasonable attorneys' fees and disbursements of this action. /I Attornkys for (516) Supreme Court Records OnLine Library - page 12 of 14 10

13 , ATTORNEY'S VERIFICATION STATE OF NEW YORK ) COUNTY OF NASSAU 1 1 ss.: I, the undersigned, am an attorney admitted to practice in the Courts of New York, and say that: I am the attorney of record, or of counsel with the attorney(s) of record, for Minelli Construction Co., Inc., Plaintiff in the within action. I have read the annexed Amended Complaint, know the contents thereof and upon information and belief believe same to be true. My belief, as to those matters therein not stated upon personal knowledge, is based on the following: documents in Affirmant's possession and conversations. The reason I make this Affirmation instead of Minelli Construction Co., Inc. is because Minelli Construction Co., Inc. is a corporation whose office is located outside the County in which your Affirmant maintains his office. I affirm that the foregoing s penalties of perjury. Dated: October 17, 2011 Supreme Court Records OnLine Library - page 13 of 14

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