FILED: NEW YORK COUNTY CLERK 08/04/2010 INDEX NO /2010 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/04/2010

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1 FILED: NEW YORK COUNTY CLERK 08/04/2010 INDEX NO /2010 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/04/2010 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK J( PHOENIX CONTRACTING GROUP, INC. -against- Plaintiff, WEST END ENTERPRISES, LLC, WEST 60 TH STREET ASSOCIATES, LLC., VJB CONSTRUCTION CORP., WESTCHESTER FIRE INSURANCE Index No. COMPANY, and ""JOHN DOE NO. I" through ""JOHN DOE No. 100", the names ofthe last 100 defendants being fictitious, the true defendants being fictitious, the true names ofsaid defendants being unknown to plaintiff, it being intended to designate fee owners, tenants or occupants ofthe liened premises and/or persons or parties having or claiming an interest in or lien upon the liened premises, ifthe aforesaid individual defendants are living, and ifany ofsaid individual defendants be dead, their heirs at law, next ofkin, distributes, representatives, and the assignees, lienors, creditors and successors in interest of them, and generally all persons claiming under, by, through or against said defendants named as a class of any right, title or interest in or lien upon the premises described in the complaint herein, Defendants J( NOTICE OF COMMENCEMENT OF ACTION SUBJECT TO MANDATORY ELECTRONIC FILING PLEASE TAKE NOTICE, that the matter captioned above, which has been commenced by filing ofthe accompanying documents within the County Clerk, is subject to mandatory electronic. filing pursuant to Section bb ofthe Uniform Rules for the Trial Courts. This notice is being served as required by Subdivision (b )(3) ofthat Section. For information about electronic filing, including access to Section bb, consult the website ofthe New York State Courts Electronic Filing System (""NYSCEF") at

2 or contact the NYSCEF Resource Center at or Dated: August 3,2010 To: See Schedule A L C. TANG, ESQ. c/o Phoenix Contracting Group nc. 510 Barnum Avenue, Suite 23A Bridgeport, CT (203) linactang@aol.com

3 SCHEDULE A Defendants' addresses West End Enterprises, LLC c/o Algin Management Co Yellowstone Blvd. Forest Hills, NY West 60 th Street Associates, LLC c/o Algin Management Co Yellowstone Blvd. Forest Hills, NY VJB Construction Corp th Avenue, 15 th Floor New York, NY Westchester Fire Insurance Company ACE, USA 1133 Avenue ofthe Americas 38 th Floor New York, NY John Doe 1 through John Doe No. 100

4 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK J( PHOENIJ( CONTRACTING GROUP, INC. Index No.: Plaintiff, Date Purchased -against- SUMMONS WEST END ENTERPRISES, LLC, WEST 60 TH STREET ASSOCIATES, LLC.? VJB CONSTRUCTION CORP., WESTCHESTER FIRE INSURANCE COMPANY, and "JOHN DOE NO. I" through "JOHN DOE No. 100",the names ofthe last 100 defendants being fictitious, the true names of said Defendants being the true names of said Defendants being unknown to plaintiff, it being intended to designate fee owners, tenants or occupants ofthe liened premises and/or persons or parties having or claiming an interest in or lien residence upon the liened premises, ifthe aforesaid individual defendants are living, and ifany of said individual defendants be dead, their heirs at law, next ofkin, distributes, representatives, and the assignees, lienors, creditors and successors in interest ofthem, and generally all persons claiming under, by, through or against said defendants named as a class ofany right, title or interest in or lien upon the premises described in the complaint herein, Defendants J( To the above named Defendants: Plaintiff designates New York County as the place oftrial. The basis ofvenue is the defendant's YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve a copy ofyour answer, or, ifthe complaint is not served with this summons, to serve a notice of appearance, on the Plaintiff's Attomeys(s) within 20 days after the service ofthis summons, exclusive ofthe day of service (or within 30 days after the service is complete ifthis summons is not personally delivered to you within the State ofnew York); and in case ofyour failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint. Dated: August 3, 2010 ~~~?~ LINA C. TAJ~G, ESQ.

5 Defendants' addresses: See Schedule A Attached hereto Attorney for Plaintiff c/o Phoenix Contracting Group Inc. 510 Barnum Avenue, Suite 23A Bridgeport, CT (203)

6 SCHEDULE A Defendants' addresses West End Enterprises, LLC c/o Algin Management Co Yellowstone Blvd. Forest Hills, NY West 60 th Street Associates, LLC c/o Algin Management Co Yellowstone Blvd. Forest Hills, NY VJB Construction Corp th Avenue, 15 th Floor New York, NY Westchester Fire Insurance Company ACE, USA 1133 Avenue ofthe Americas 38 th Floor New York, NY John Doe 1 through John Doe No. 100

7 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK )( PHOENI)( CONTRACTING GROUP, INC. Plaintiff, -against- VERIFIED COMPLAINT WEST END ENTERPRISES, LLC, WEST 60 TH STREET ASSOCIATES, LLC., VJB CONSTRUCTION CORP., WESTCHESTER FIRE INSURANCE Index No. COMPANY, and "JOHN DOE NO.1" through "JOHN DOE No. 100", the names ofthe last 100 defendants being fictitious, the true defendants being fictitious, the true names ofsaid defendants being unknown to plaintiff, it being intended to designate fee owners, tenants or occupants ofthe liened premises andlor persons or parties having or claiming an interest in or lien upon the liened premises, ifthe aforesaid individual defendants are living, and ifany ofsaid individual defendants be dead, their heirs at law, next ofkin, distributes, representatives, and the assignees, lienors, creditors and successors in interest of them, and generally all persons claiming under, by, through or against said defendants named as a class ofany right, title or interest in or lien upon the premises described in the complaint herein, Defendants )( Plaintiffby its attorney, Lina C. Tang, Esq., for its complaint herein, respectfully shows and alleges as follows: FOR A FIRST CAUSE OF ACTION 1. Phoenix Contracting Group, Inc. (hereinafter "Phoenix"), is a foreign corporation, with offices located at 510 Barnum Avenue, Suite 23A, Bridgeport, CT 06608, organized under and by virtue of the laws ofthe State ofconnecticut and is duly authorized to do business in the state of New York. Phoenix is in the business, among other things, the supply and installation ofwindow wall, curtain wall, windows, railings, metal panel in buildings.

8 2. Upon infonnation and belief, West End Enterprises, LLC (hereinafter "West End"), is a limited liability company organized and existing under the laws ofthe State ofnew York, maintaining a place ofbusiness at c/o Algin Management Co., Yellowstone Blvd., Forest Hills, NY Upon infonnation and belief, West 60 th Street Associates LLC (hereinafter "West 60 th Street) is a limited liability company organized and existing under the laws ofthe State ofnew York, maintaining a place ofbusiness at c/o Algin Management Co., Yellowstone Blvd., Forest Hills, NY Upon infonnation and belief, VJB Construction Corp. (hereinafter "VJB") is a corporation organized and existing under the laws ofthe State ofnew Jersey, authorized to do business in the State ofnew York, and maintaining a place ofbusiness at th Avenue, 15 th Floor, New York, NY, and is engaged in the business as a general contractor. 5. Upon infonnation and belief, Westchester Fire Insurance Company (hereinafter "Westchester") is a domestic corporation with offices at, ACE, USA, 1133 Avenue ofthe Anlericas 38 th Floor, New York, NY Defendants John Doe No.1 through John Doe No. 100 inclusive are or may be (a) other persons or entities unknown to Phoenix, who have filed or recorded a notice oflien, lien, mortgage, judgement or warrant against the real property more fully described below or against the owners thereof, prior to the filing by Phoenix ofits lien or (b) persons or entities having or claiming any interest in such real property, which interest accrued subsequent to the lien ofphoenix and is subordinate thereto or (c) may be persons in possession of such real property. 7. Upon infonnation and belief, that on or about January 15,2008, plaintiff, Phoenix, entered into an agreement with VJB, as disclosed agent for the owner and Algin Management Co.

9 LLC as agent for West End and West 60 th Street, whereby it was to furnish and install certain windows, window wall and curtain wall to the project known as 60 th /61 st & Amsterdam Avenue, all with the consent and knowledge ofowner (hereinafter "Subcontract"). 8. That the project known as 60 th /61 st & Amsterdam A venue (hereinafter "Projecf') included three buildings, two intended for rental and one intended for conversion to condominiums. 9. Upon information and belief the buildings in the Project were all owned by West End and/or West 60 th Street. 1O. That all times hereinafter mentioned, upon information and belief, West End was the owner in fee of certain premises in the Borough and County ofnew York, City and State ofnew York, being more particularly bounded and described as 243 West 60 th Street, Apts. 2D, 3B, 3F, 4A, 6D, 7A, 7B, 7C, 8A and 8C, New York, NY 10023, Block 1152, Lots 1109, 1113, , 1136, 1137, 1138, 1140 and Upon information and belief, West 60 th Street is the owner in fee ofthe' two-rental " buildings that are part ofthe Project, one known as 229 West 60 th Street, N~w York, NY. 12. Upon information and belief, prior to January 2008, defendant VJB entered into a contract, as construction manager, with West End and West 60 th Street to perform certain construction work for the Project (hereinafter "Owner Agreement") known as 60 th /61 st & Amsterdam Avenue. 13. Phoenix begs leave to refer to the original of said agreement as the same may be produced upon the trial ofthis action for all of its terms and conditions. 14. That according to the terms and conditions ofthe Subcontract, Phoenix did agree to supply and install said window wall, curtain wall and windows for the Project for the agreed upon sum of$6,200,917.

10 15. That according to the tenns and conditions ofthe agreement, subsequent modifications, which included but were not limited to additions, deletions, descoping, Phoenix did complete its perfonnance and furnish said window wall, curtain wall and windows to VJB, West End and West 60 th Street. 16. There remains an unpaid balance of$994,382, which has beendu1y demanded. 17. That all ofthe afore-described labor and material provided by Phoenix to VJB, West End and West 60 th Street, was for construction ofimprovements on the within described premises and the two rental buildings were furnished with the knowledge and consent ofthe afore-said owner. 18. That pursuant to the Lien Law ofthe State ofnew York, Phoenix, on August 5, 2009, within the eight (8) months after the time when the last item ofwork was perfonned, du1y filed with the New York County Clerk, a Notice ofmechanic's Lien in writing and in proper fonn du1y verified by oath ofphoenix's CEO which claims a lien on the premises within described for the sum of$994,382. A copy is annexed hereto as Exhibit "A". 19. Pursuant to Lien Law Section 11, and II-b, following the filing >of said lien, Phoenix served a copy ofsaid lien upon the owner and the construction manager and filed affidavits of service with the County Clerk within 35 days after the notice oflien was filed. 20. That by reason ofthe foregoing, Phoenix has acquired a good, valid and subsisting lien on the within described premises. 21. On or about October 27, 2009, West End as owner and principal, and the defendant, Westchester, as surety, du1y made, executed and delivered an undertaking in writing in due fonn to the Clerk ofnew York County in the sum of One Million Ninety Three Thousand Eight Hundred Twenty ($1,093,820.00) Dollars conditioned for the payment ofany judgment that may be rendered against said property in any action to enforce the aforesaid Notice oflien, and the said undertaking

11 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 Westchester is surety on the undertaking to discharge Phoenix's Notice oflien and for that reason is made a party hereto and a personal judgment is asked against it. 23. Upon information and belief, no person has any subsequent liens or claims against said premises by way ofjudgment, mortgage or otherwise. FOR A SECOND CAUSE OF ACTION 24. Plaintiff incorporates by reference paragraphs 1 through 23 above, as if fully set forth herein at length. 25. The defendants West End, West 60 th Street and VJB breached the subcontract between on or about January 2008 and April 2009 as follows, but not limited to: (a) by failing to provide the jobsite as per architectural drawings and specifications; (b) by failing to remedy jobsite conditions in an efficient and timely manner, which caused 3 Phoenix to have to install product out of sequence and caused Phoenix to expend substantial additional costs in labor due to comeback work; (c) by failing to pay Phoenix as per the subcontract and AlA documents, including but not limited to change orders, addenda, additions, deletions and descoping ofwork; (d) by requiring Phoenix to perform additional work outside ofits scope due to site conditions, then failing to sign change orders or pay Phoenix for such additional work, as it was directed to perform; (e) by delaying the job so as to cause Phoenix additional expenses; (f) by failing to act in a commercially reasonable manner.

12 26. During the course ofthe construction performed by Phoenix, West End, West 60 th Street and V JB continuously demanded that Phoenix do additional work for which they are entitled to be compensated. 27. To date, Phoenix has not been compensated for the additional work (outside of scope) done at the request ofvjb, West End and West 60 th Street, despite numerous demands. 28. Due to West End, West 60 th Street and VJB's breach ofthe subcontract, Phoenix has sustained damages in the sum of One Million Two Hundred Seventy One Thousand Two and No cents ($1,271,002.00) Dollars. 29. By reason ofthe foregoing, as a result of, among other things, West End, West 60 th Street and V JB' s breach ofcontract, Phoenix is entitled to a judgment against West End, West 60 th Street and VJB in the sum ofone Million Two Hundred Seventy One Thousand Two and No cents ($1,271,002.00) Dollars, with interest thereon from October 2008, attorneys fees, costs and disbursements. WHEREFORE, Phoenix Contracting Group Inc. demands judgment: (a) Upon the First Cause ofaction in favor ofphoenix Contracting Grouplnc. as follows: 1. That Phoenix Contracting Group Inc. be determined and adjudged to have a valid and subsisting lien upon the interest ofthe owner in the real property above-described until the time of its cancellation and discharge by the filing ofthe lien as aforesaid. 2. That the amount due upon Phoenix Contracting Group Inc.' s lien and claim be ascertained and adjudged. 3. That the plaintiff, Phoenix Contracting Group, Inc., have judgment for the enforcement of said lien against said real property in form only for the purposes ofsatisfying the condition ofsaid bond.

13 4. That the said surety, Westchester Fire Insurance Company be declared liable by virtue thereof and that Phoenix Contracting Group Inc. have judgment in the sum ofnine Hundred Ninety Four Thousand Three Hundred Eighty Two ($994,382.00) Dollars against said surety. 5. That Phoenix Contracting Group Inc. have judgment in the sum ofnine Hundred Ninety Four Thousand Three Hundred Eighty Two ($994,382.00) Dollars with interest thereon from the 9 th day of February 2009, attorneys fees, together with costs and disbursements ofthis action. 6. That in case it be detennined and adjudged that Phoenix Contracting Group Inc. did not have a valid and subsisting lien upon said real property at the time ofthe cancellation and discharge thereof by the filing ofsaid bond as aforesaid, Phoenix Contracting Group Inc. may have a personal judgment against the defendant, West End Enterprises, LLC and West 60 th Street, for the sum of Nine Hundred Ninety Four Thousand Three Hundred Eighty Two ($994,382.00) Dollars with interest thereon from the 9 th day offebruary 2009, attorneys fees, together with costs and disbursements ofthis action. 7. That Phoenix Contracting Group Inc. have such other and further relief or both, in the premises as shall be equitable and proper. 8. Adjusting and detennining the equities ofall the parties to this action and detennining the validity, extent and priority ofthe claims and liens to be asserted herein. 9. Directing the defendant, West End Enterprises, LLC, to pay over to plaintiff the amount adjudicated as the amount ofits lien and claim herein, with interest and granting to the plaintiff judgment for any deficiency therein together with attorneys fee and the costs and disbursements of this action. 10. That the premises described be sold, as provided by law, and that out of the proceeds of such sale, the plaintiff be paid the amount of its lien and interest, with the expenses ofthe sale and

14 the costs and disbursements ofthis action; and that the plaintiff have judgment against the said defendant West End Enterprises, LLC and West 60 th Street Associates, LLC, for any deficiency which may then remain. 11. In case it be determined and adjudged that plaintiff did not have a valid and subsisting lien, that plaintiff then be granted a personal judgment against defendant West End Enterprises, LLC, and West 60 th Street Associates, LLC in the sum ofnine Hundred Ninety Four Thousand Three Hundred Eighty Two ($994,382.00) Dollars with interest thereon from the 9 th day of February 2009, together with attorneys fees, costs and disbursements ofthis action. 12. Such other and further relief in the premises as to this Court may seem just and proper. (b) Upon the Second Cause of Action in favor ofphoenix Contracting Group Inc. as follows: 1. Judgment against West End Enterprises, LLC, West 60 th Street Associates, LLC arid VJB in the sum ofone Million Two Hundred Seventy One Thousand Two and No cents ($1,271,002.00) Dollars, with interest thereon from October 2008, attorneys fees, costs and disbursements ofthis action. 2. Such other and further relief in the premises as to this Court may deem just and proper. Dated: August 3, 2010 " """? ::;;2~.,/...---;;.. ~ ~~~--~--~~~~ Ll~ L. TANG, Esq. Attorney for Plaintiff c/o Phoenix Contracting Group, Inc. 510 Barnum Avenue, Suite 23A Bridgeport, CT (203)

15 VERIFICATION STATE OF CONNECTICUT ) COUNTY OF NEW HAVEN ) )ss.: JAMES E. BARBARA, being duly sworn, deposes and says that I am the CEO ofphoenix Contracting Group Inc., the plaintiff herein, that deponent has read the foregoing Verified Complaint and knows the contents thereof, and that the same is true to deponent's own knowledge, except as to the matter therein stated to be alleged upon information and belief, and that as to those matters, deponent believes it to be true. The reason why this verification is made by deponent is that deponent is an officer, to wit, the CEO ofphoenix Contracting Group Inc. which is a Connecticut corporation, and deponent is familiar with the facts and circumstances herein. The sources ofdeponent's information and the ground ofdeponent's belief as to all the matters not therein stated upon deponent's knowledge are as follows: corporate files and records. Sworn to before me on thi ~ Day ofaugust, 20 I O.

16 '. NOTICE OF MECHANIC'S LIEN To the Clerk ofthe County ofnew York, and all others whom it may concern PLEASE TAKE NOTICE, that Phoenix Contracting Group Inc. as lienor has and claims a lien on the real property hereinafter described as follo~s: (1) The name and business address ofthe lienor is: Phoenix Contracting Group Inc. 6 Oak Street West Greenwich, CT Being a corporation composed of2 owners. (la) The name and address oflienor's attorney, ifany: Lina Tang, Esq. c/o Phoenix Contracting Group In 6 Oak Street West Greenwich, CT (2) The owner ofthe real property is: West End Enterprise, LLC. and the interest ofthe owner as far as known to the lienor is 100%.... (3) The name ofthe person with whom the contract was made is: VJBCONSTRUCTION" CORP as disclosed agent for the owner of60 th /61 st & Amsterdam Avenue'New York, NY (4) The labor performed was the installation ofa window wall systemtbrougbout the structure as well as exterior curtain wall installations and materials. The agreed price and value ofthe labor and material performed is: $6,200, (5) The amount unpaid to the lienor for said material and labor (not including back charges) is $994, for which this Lien is filed. (6) The time when the first item ofwork was performed was: 01//03/2008 The time when the last item ofwork was perfon:iied was: 02109/2009 (7) The property subject to the lien is situated in the Borough ofnew York, County ofnew York, City ofnew York, known as 60 th /61st &Amsterdam Avenue New York, NY, Block 1152 Lotll09, 1113,1117,1118,1133,1136, 1137, i13~.1l40, and 1142 city ofmanhattan, NY. Also known as 243 West 60 Street 2D, 3B, 3F. 4A, Cill~ 7~}B, 7C, 8A, and 8C New York, NY 10m..

17 '. That said labor and materials were perfonned and furnished for and used inthe improve(jlent ofthe real property hereinbefore described. That 8 months has not elapsed dating from the last item ofwork, performed, or from the last items ofmaterials furnished, or since completion ofthe contract, or since the final perfonnance ofthe. work:, or since the final furnishing ofthe materials for which this lien is claimed. Dated: Aug. 4, 2009 ~---- James E. Barbara CEO Phoenix Contracting Group Inc. VERIFICATION State ofconnecticut ) )ss.: County offairfield ) lames E. Barbara, being duly sworn, says that deponent is the CEO ofphoenix Contracting Group Inc., the lienor herein, that deponent has read the foregoing notice oflien and knows the contents thereof, and that the same is true to deponent's own knowledge, except as to the matter therein stated to be alleged upon infonnation and belief, and that as to those matters deponent believes it to be true. The reason why this verification is made by depoilej!lt is that deponent is an officer, to wit, the CEO ofphoenix Contracting Group Inc. which is:a _ Connecticut corporation, and deponent is familiar with the facts and circumstances herem. " " The sources ofdeponent's infonnation and the grounds of deponent~s beliefas to all matters not therein stated upon deponent's knowledge are as follows; corporate files and records. ~~~=========----«James E. Barbara ", CEO Phoenix Contracting Group Inc. Sworn to before me onthe 4th day of Aug.'2009.,

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