FILED: NEW YORK COUNTY CLERK 07/27/2010 INDEX NO /2010 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 07/27/2010 IN

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1 FILED: NEW YORK COUNTY CLERK 07/27/2010 INDEX NO /2010 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 07/27/2010 IN SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK GALAXY GENERAL CONTRACTING cow. vs. Plaintiffs, th AVENUE REALTY LLC, BANCO POPULAR NORTH AMERICA, INDUSTRIAL FIRE DOOR & HARDWARE SUPPLY, INC., ALL CITY GLASS AND MIRROR CORP., NORTHERN BUILDING PRODUCTS, INC., JNP CONTRACTORS LTD., RELIANT ELECTRONIC CONTRACTING, INC., JSATZ METAL FABRICATORS, INC., INDEPENDENT TEMPERATURE CONTROL SERVICES, BORO KITCHEN CABINETS, INC., GRAYBAR ELECTRIC COMPANY, INC., TREVOR WHITTTNGHAM, INC., NEW YORK CITY DEPT OF FINANCE; and the following persons or parties being either tenants or occupants of the liened premises or persons or parties having or claiming to have a right title or interest in the liened premises herein being sued fictitiously because their representative names are presently unknown to the plaintiff, i.e. John Doe 1 through John Doe 3 Index No.: /10 ANSWER Defendants. Defendant Banco Popular North America, by and through its attorneys Alston & Bird LLP, hereby responds to Plaintiff Galaxy General Contracting Cop s Complaint and states as follows : LEGAL02/ ~2 Supreme Court Records OnLine Library - page 1 of 10

2 AS AND FOR THE FIRST CAUSE OF ACTION 1. Banco Popular admits that Plaintiff is a New York corporation located at 3152 Albany Crescent, Bronx, New York and denies knowledge or information sufficient to form a belief as to the truth of the remaining allegations in Paragraph Banco Popular admits the allegations in Paragraph Banco Popular admits the allegations in Paragraph 3. Banco Popular denies knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph Banco Popular denies knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph Banco Popular admits the allegations in Paragraph 6. Banco Popular admits the allegations in Paragraph 7. Banco Popular admits that on or about July 18, 2007, Plaintiff and Defendant Owner entered into a written agreement for the construction of a high rise luxury condominium building and is denies knowledge sufficient to form a belief as to the truth of the remaining allegations in Paragraph Banco Popular denies knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph Banco Popular denies knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph Banco Popular denies knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 11 and further denies any liability in respect of the answering defendant. LEGAL02/3 I v2-2- Supreme Court Records OnLine Library - page 2 of 10

3 12. Banco Popular denies knowledge or information sufficient to fom a belief as to the truth of the allegations in Paragraph Banco Popular denies knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph Banco Popular denies knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph Banco Popular denies knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph Banco Popular denies knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph Banco Popular denies knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph Banco Popular denies knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph Banco Popular denies knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph Banco Popular denies knowledge or infomation sufficient to form a belief as to the truth of the allegations in Paragraph Banco Popular denies that Plaintiff is entitled to any of the relief sought in Paragraph 22. LEGAL02/ ~2-3- Supreme Court Records OnLine Library - page 3 of 10

4 AS AND FOR THE SECOND CAUSE OF ACTION 22, Banco Popular reiterates and incorporates its responses to Paragraphs 1 through 22 of Plaintiffs Complaint as if set forth herein and otherwise denies knowledge or information sufficient to form a belief as to the truth of the remaining allegations in Paragraph Banco Popular admits the allegations in Paragraph 24. Banco Popular admits that Banco Popular has received and approved requisitions submitted by the Defendant Owner and denies knowledge or information sufficient to form a belief as to the truth of the remaining allegations in Paragraph 25, 25. Banco Popular admits that as of October 1, 2009, Plaintiff had substantially completed the work called for under the contract and denies knowledge or information sufficient to form a belief as to the truth of the remaining allegations in Paragraph Banco Popular denies knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph Banco Popular denies knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph Banco Popular denies knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph Banco Popular denies the allegations in Paragraph 30. AS AND FOR THE THIRD CAUSE OF ACTION 30. Banco Popular reiterates and incorporates its responses to Paragraphs 1 through 30 of Plaintiffs Complaint as if set forth herein and otherwise denies knowledge or information sufficient to form a belief as to the truth of the remaining allegations in Paragraph 31. LEGAL02/ v2-4- Supreme Court Records OnLine Library - page 4 of 10

5 , Banco Popular denies knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph Banco Popular denies knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph Banco Popular denies the allegations in Paragraph 34. Banco Popular denies the allegations in Paragraph 35. Banco Popular denies knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph Banco Popular denies the allegations in Paragraph 37. AS AND FOR THE FOURTH CAUSE OF ACTION 37. Banco Popular reiterates and incorporates its responses to Paragraphs 1 through 37 of Plaintiffs Complaint as if set forth herein and otherwise denies knowledge or information sufficient to form a belief as to the truth of the remaining allegations in Paragraph Banco Popular admits the allegations in Paragraph 39, Banco Popular denies knowledge or information sufficient to fom a belief as to the truth of the allegations in Paragraph 40, 40. Banco Popular denies knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph Banco Popular denies knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph Banco Popular denies the allegations in Paragraph 43. LCGAL02/ ~2-5- Supreme Court Records OnLine Library - page 5 of 10

6 AS AND FOR THE FIFTH CAUSE OF ACTION' 43. Banco Popular reiterates and incorporates its responses to Paragraphs 1 through 43 of Plaintiffs Complaint as if set forth herein and otherwise denies knowledge or information sufficient to form a belief as to the truth of the remaining allegations in Paragraph , Banco Popular admits that on or about October 23, 2007, Plaintiff entered into an assignment agreement with Defendant Owner and Banco Popular and Plaintiff provided Banco Popular with a letter of credit in the amount of $627, and denies the remaining allegations in Paragraph Banco Popular denies the allegations in paragraph 46. Banco Popular denies the allegations in Paragraph 47, in that the allegations fail to completely and accurately describe Banco Popular's obligation under the relevant agreements and Banco Popular respectively refers the Court to the agreement for a full description Banco Popular denies the allegations in Paragraph 48. Banco Popular denies the allegations in Paragraph 49. Banco Popular denies the allegations in Paragraph 50. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 50. The Complaint fails in whole or in part to state a cognizable claim upon which relief can be granted. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 5 1. Plaintiffs claims are barred by the terms, conditions, or limitations of liability in the applicable agreements. 1 Plaintiffs Complaint has two fourth causes of action, and for the sake of clarity, the second of the two LEGAL02/ ~2-6- Supreme Court Records OnLine Library - page 6 of 10

7 AS AND FOR A THIRD AFFIRMATIVE DEFENSE 52. Plaintiffs claims are barred to the extent they resulted from the conduct of third parties or entities over whom Defendant Banco Popular has no control. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 53. The Plaintiffs own conduct was the proximate cause of any damages allegedly sustained. WHEREFORE, Banco Popular respectfully requests that the Court enter a judgment dismissing the claims against Banco Popular with prejudice, granting Banco Popular its costs and disbursements incurred in the defense of the claims, and granting such other and further relief as the Court may deem just, equitable and proper. Dated: New York, New York April 19, Park Avenue New York, New York (2 12) Attorneys for Defendant Banco Popular North America fourth causes of action is described here as the fifth cause of action. LEGAL lv2-7- Supreme Court Records OnLine Library - page 7 of 10

8 .... SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK GALAXY GENERAL CONTRACTING COW. VS, Plaintiffs, Index No.: / th AVENUE RELTY LLC, BANCO POPULAR NORTH AMERICA, ET. AL., AFFIDAVIT OF SERVICE Defendants. STATE OF NEW YORK ) 1 ss.: COUNTY OF NEW YORK ) Amanda Factor, being duly sworn, hereby deposes and says: 1. I am over 18 years of age and am not a party to the above-captioned proceedings. I am employed by Alston & Bird, LLP, having offices at 90 Park Avenue, New York, New York 10016, 2. On the 19th day of April, 2010,I served a true and correct copy of DEFENDANT BANCO POPULAR NORTH AMERICA'S ANSWER upon the following parties: th Avenue Realty LLC 2143 Adam Clayton Powell Jr. Blvd. New York, NY Industrial Fire Door & Hardware Supply, Inc. 29 Grove Street South Hwckensack, NJ All City Glass and Mirror Corp. c/o Solomon Berkovitch 1964 Utica Avenue Brooklyn, NY JNP Contractors Ltd th Street Fresh Meadows, NY Katz Metal Fabricators, Inc. 434 East 165'h Street Bronx, NY Northern Building Products, Inc. c/o Franzino & Rosenberg, P.C. 101 East 52"d Street New York, NY Reliant Electronic Contracting, Inc. 628 Classon Avenue Brooklyn, NY Independent Temperature Control Services, Inc th Road College Point, NY LEGA1,02/ ~ 1 Supreme Court Records OnLine Library - page 8 of 10

9 Boro Kitchen Cabinets, Inc. c/o Marc M. Tract, Esq. Rosenman & Colin LLP 575 Madison Avenue New York, NY Trevor Whittingham, Inc. c/o Mike Gill 400 St. Nicholas Avenue New Yark, NY Greybar Electric Company, Inc. c/o Corporation Service Company 80 State Street Albany, NY New York City Department of Finance Attn: Legal Department 66 John Street New York, NY by enclosing true copies of same in properly addressed prepaid envelopes and depositing those envelopes with an official depository of the United States Postal Service within the State ofnew York. 3. On the 19th day of April, 2010, I served a true and correct copy of DEFENDANT BANCO POPULAR NORTH AMERICA'S ANSWER upon the following party by UPS Overnight Delivery and Electronic mail. Michael D. Doyle, Esq. Doyle & Brournand, LLP 3152 Albany Crescent Bronx, IVY dovle,law ('verizon.net Sworn to before me this Amanda Factor LEGAL02/ ~ I -2- Supreme Court Records OnLine Library - page 9 of 10

10 ~~ ~~ Index No.: /2010 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK GALAXY GENERAL CONTRACTING COW., Plaintiffs, - against TH AVENUE REALTY LLC, B Defendants. # ANSWER PJ TT PUL~R &TH 4 AMERICA, ET. AL,, ALSTON & BIRD LLP ATTORNEYS FOR DEFENDANT 90 PARK AVENUE NEW YON, NY (212) (212) (FAX - NOT FOR SERVICE OF PAPERS) Pursuant to 22 NYCRR , the undersigned, an attorney admitted to practice in the courts of New York State, certijies that, upon information and belief and reasonable inquiry, the contentions contained in the annexed document are notjrivolous. Dated..... Signature..... Print Signer's Name..... Service of a copy of the within is hereby admitted. Dated: Attorney(s) for. PLEASE TAKE NOTICE that the within is a (certiped) true copy of a 0 Notice of entered in the office of the clerk of the within named Court on Entry Notice of Settlement that an Order of which the within is a true copy will be presented,for settlement to the Non. one of the judges of the within named Court, at on J ut M. Dated: Supreme Court Records OnLine Library - page 10 of 10 ALSTON & BIRD LLP 90 PARK AVENUE NEW YORK, NEW YORK (212)