$700,000 against defendants Monadnock Construction Inc. (hereinafter "Monadnock"),

Transcription

1 FILED: NEW YORK COUNTY CLERK 05/07/ :34 PM INDEX NO /2015 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 05/07/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK )( C&S CONSTRUCTION AND CONSULTING GROUP LLC on behalf of itself and on behalf of all persons entitled to share in the funds received by MONADNOCK CONSTRUCTION INC., in connection with the improvements to real property identified as 215 East 99TH Street, New York, New York also known as Block 01649, Lot (the ''Property"), Plaintiff, Index No VERIFIED COMPLAINT -against- MONADNOCK CONSTRUCTION INC., PETER HANSEN, GREGORY BAUSO, EL BARRIO ARTSPACE HOUSING DEVELOPMENT FUND CORP., CAPITAL ONE NA, FIDELITY AND DEPOSIT COMPANY OF MARYLAND and "JOHN DOE l" through "JOHN DOE 10" the fictitious names being those individuals and/or entities unknown to plaintiff and having or claiming an interest in or lien upon the Property, and JANE DOE "11" through "JANE DOE 20", the fictitious names being those individuals and/or entities unknown to plaintiff liable for the diversion of trust funds pursuant to Article 3-A of the Lien Law of the State of New York, in connection with the improvements to the Property, Defendants )( Plaintiff designates New York County as the place of trial. The basis of the venue is that the Property is located in New York County and the cause of action arose in New York County. Plaintiff C&S Construction and Consulting Group LLC, by its attorney The Cermele Law Firm PLLC, as and for its verified complaint herein alleges as follows: Introduction 1. In this action, plaintiff C&S Construction and Consulting Group LLC (hereinafter "C&S") seeks to recover monetary damages reasonably estimated to exceed $700,000 against defendants Monadnock Construction Inc. (hereinafter "Monadnock"), Peter Hansen (hereinafter "Hansen"), Gregory Bauso (hereinafter "Bauso"), El Barrio 1

2 Artspace Housing Development Fund Corp. (hereinafter "El Barrio") and Fidelity and Deposit Company of Maryland (hereinafter "FDCM") by reason of their failure and refusal to pay C&S the fair and reasonable fee agreed to by and between Monadnock and C&S in order for C&S to provide construction management services to transform an abandoned public school building in East Harlem at 215 East 99th Street, New York, New York, also known as Block 1649, Lot 9 (the "Property") into an arts facility with 89 units of affordable live/work housing for artists and their families and 10,000 square feet of complementary space for arts organizations (overall, the "Project"). C&S' causes of action sound in, inter alia, breach of contract, unjust enrichment, breach of fiduciary duty, trust fund diversion, fraud, constructive trust and accounting. Also, C&S hereby seeks to foreclose and enforce its mechanic's lien filed in conjunction with labor, materials, equipment and services furnished to the Project. Parties 2. Plaintiff C&S Construction and Consulting Group LLC ("C&S") is a domestic limited liability company organized and existing by virtue of the laws of the State of New York, with a place of business located at 110 York Street, 6th Floor, New York, NY Upon information and belief, defendant Monadnock Construction Inc. ("Monadnock") is a domestic business corporation organized and existing by virtue of the laws of the State of New York, with a place of business located at 155 3rd Street, Brooklyn, New York

3 4. Upon information and belief, defendant Peter Hansen ("Hansen") is a natural person residing in the State of New York at 3187 Hylan Blvd., Staten Island, NY and is an owner, authorized to on behalf, of Monadnock. 5. Upon information and belief, defendant Gregory Bauso ("Bauso") is a natural person residing in the State of New York at th Street, Brooklyn, NY and is an owner, authorized to on behalf, ofmonadnock. 6. Upon information and belief, defendant El Barrio Artspace Housing Development Fund Corp. ("El Barrio") is a domestic business corporation organized and existing by virtue of the laws of the State of New York, with a principal place of business at 250 Third Avenue North, Suite 400, Minneapolis, Minnesota and is the owner of215 East 99th Street, New York, New York, also known as Block 1649, Lot 9 (the "Property"). 7. Upon information and belief, defendant Capital One N.A. ("Cap One") is a bank banks chartered by the Office of the Comptroller of the Currency having a principal place of business at 404 Fifth Avenue, 3rd Floor, New York, NY and has an interest in the Property. 8. Upon information and belief, defendant Fidelity and Deposit Company of Maryland ("FDCM") is a corporation organized and existing by virtue of the laws of the State of Maryland and duly authorized to transact the business of insurance in the State of New York, having a principal place of business at 600 Red Brook Blvd., Suite 600, Owings Mills, MD and posted a bond to pay any judgment which may be rendered in an action for the enforcement of the mechanic's lien filed by C&S against the Property in the amount of $700,000. 3

4 9. Upon information and belief, defendants "JOHN DOE 1" through "JOHN DOE 1 O" are defendants unknown to plaintiff and having or claiming an interest in or lien upon the Property. 10. Upon information and belief, defendants, "JANE DOE 11" through "JANE DOE 20", are defendants unknown to plaintiff liable for the diversion of trust funds pursuant to Article 3-A of the Lien Law of the State of New York in connection with improvements to the Property. Facts Common to All Causes of Action 11. C&S is in the business of providing construction management services, which services include, at least, the preparation estimates and bids for construction costs; identifying scopes of work; preparing budgets and schedules; negotiating and budgeting prices for trade contracts; assessing and resolving issues pertaining to logistics and safety planning; periodically reviewing construction progress and assisting its clients with planning and resolving issues (collectively "Construction Management Services"). 12. On or about February 22, 2012, C&S entered into a written agreement with Monadnock (the "Agreemept"), pursuant to which C&S agreed to provide Monadnock with Construction Management Services for the Project. A true and correct copy of the Agreement is attached as Exhibit "A." 13. Pursuant to the Agreement, Monadnock agreed to pay C&S a reasonable and agreed fee for C&S' construction management services as follows: a. an upfront fee of $50,000 to C&S upon Monadnock signing a construction contract with El Barrio, which is the owner of the Property; 4

5 b. a monthly flat fee of $5,000 per month for 24 months during construction; and c. 50% ofmonadnock's net profits that exceed 8% of the total construction cost, excluding corporate overhead, upon obtaining a temporary certificate of occupancy. 14. Monadnock had final authority to hire all trade contractors, submit payment requests to El Barrio and facilitate payment to the trade contractors, consultants, laborers, suppliers and C&S. 15. Monadnock had complete control of the receipt and disbursement of payments relating to the Project. 16. From on or about February 21, 2012 through and until August 12, 2014, C&S duly performed all of the terms and conditions of the Project on its part to be performed under the Agreement and is entitled to payment of the agreed fee. 17. Monadnock has paid C&S the initial payment of $50,000 and 24 monthly payments of $5,000.00, but has not paid C&S any portions of the profits as :required by the Agreement. 18. Since a substantial component of C&S' compensation was to be measured as a percentage of the Monadnock's net profits on the Project, excluding its general overhead costs, it was crucial and necessary to C&S that it be afforded the opportunity to periodically review Monadnock's Project related cost entries and records. 5

6 19. Initially, Monadnock made periodic reports to C&S demonstrating that the profits exceed 8% by more than $1,400,000 and represented to C&S that they would share in 50% of this excess profit pursuant to the Agreement. 20. However, as the Project progressed near completion Monadnock ceased and refused to provide C&S with reports of the Project costs and records. 21. Of the records that were furnished to C&S, upon information and belief, Monadnock oversimplified, omitted and fabricated job cost and payment records with the cooperation, participation and knowledge of Hansen and Bauso (collectively the "Members") in order to misrepresent the profitability of the Project and to prevent C&S from performing an assessment of the Project's actual job costs and thereby frustrate C&S' ability to calculate the final and substantial portion of its fee. 22. Upon information and belief, Monadnock and its Members knowingly recorded false and/or overstated payment to trade contractors, suppliers, laborers and/or consultants in order to inflate the Project's costs. 23. Upon information and belief, Monadnock and its Members caused the Project to incur additional costs by issuing change orders to trade contractors that provided for additional compensation for work already included within the trade contractor's scopes of work. 24. Upon information and belief, Monadnock and its Members delayed completion and caused additional cost to the Project by their inexcusable failure to make timely payment to trade contractors and by hiring unqualified contractors and laborers without allowing C&S the opportunity to vet the same. 6

7 25. Upon information and belief, Monadnock and its Members intentionally and knowingly prepared falsified cost records with inflated cost entries in an attempt to portray the Project as less profitable and thereby frustrate payment of C&S' fee. 26. Upon information and belief, the Members, at all times relevant to the present action, exhibited dominion and control over Monadnock. 27. Upon information and belief, the Members comingled personal funds with those of Monadnock. 28. Upon information and belief, Monadnock was and is inadequately capitalized to perform as a general construction contractor for the Project and generally in New York City. 29. Upon information and belief, the Members and Monadnock did not adhere to corporate formalities, rules and laws governing the formation and maintenance of a corporation, including, without limitation, failing to: holding annual meetings of directors and shareholders or members; keep accurate, detailed records I minutes of important decisions that are made at the meetings; adopting company bylaws; and ensure that officers and agents abide by those bylaws. 30. Upon information and belief, in or about September 2014 Monadnock obtained a temporary certificate of occupancy, demonstrating that all substantial portions of work related to the Project have been completed and, likewise, nearly all costs and payments can be accounted for. 7

8 31. Nevertheless, despite C&S' repeated demand for final Project cost and payment records, as well as payment of the remaining portion of C&S' fee, Monadnock and its Members have failed and refused to furnish the same. 32. The work, labor, materials and services furnished and performed by C&S for the Project were performed and furnished with the consent, knowledge and approval of El Barrio, which is the owner of the Property. 33. The aforesaid work, labor, materials and services were furnished and performed by C&S for the Project in furtherance of the contract between Monadnock and El Barrio and all of said labor performed and materials furnished by C&S were a portion of the labor, materials, services and work contracted to be performed and furnished by Monadnock to El Barrio. 34. On January 21, 2015, and within eight (8) months of the date on which C&S last performed work for the Project, C&S filed in the Office of the County Clerk of the County of New York, which is the County in which the Project is located, a Notice of Mechanic's Lien against the premises known as 215 East 99th Street, New York, New York, also known as Block 1649, Lot 9 in the amount of $700,000 (the "Lien"), and said Lien was duly docketed in that office. A true and correct copy of the Lien is attached as Exhibit "B." 35. The aforesaid Lien is fully and in all respects in conformance and compliance with the provisions and requirements of the Lien Law of the State of New York ("Lien Law"); and was duly, properly and timely filed and docketed with the Clerk of the County of New York in accordance with the Lien Law. 8

9 36. At the time of the filing of said Lien, C&S had completed its work pursuant to the Agreement, had become entitled to a payment on account thereof and there was then monies owing to Monadnock from El Barrio in excess of the amount claimed in the Lien. 37. On January 21, 2015, copies of the Lien was affixed conspicuously to the Property between the hours of nine o'clock in the forenoon and four o'clock in the afternoon, and copies of the Lien were served upon Monadnock, its Members and El Barrio by depositing a true copy thereof enclosed in a postage prepaid wrapper, marked "Certified Mail, Return Receipt Requested," in a post office within the State of New York, addressed to the last-known address of the parties listed above. 38. On January 21, 2015, an affidavit attesting to the above manner of serving the Lien (the "Affidavit of Service of Lien"), was filed with the Clerk of the Court of the County of New York in compliance with the requirements of the Lien Law. A copy of said Affidavit of Service of Lien is attached as Exhibit "C." 39. On or about January 23, 2015, Monadnock, as principal, procured from FDCM, as surety, and FDCM executed, bond number LPM (the "Bond") in the principal amount of $770, for the purpose of discharging C&S' Lien. 40. Upon information and belief, on or about February 4, 2015, the Bond was filed with the Clerk of the County ofnew York and served on C&S, thereby discharging the aforementioned Lien of record pursuant to the Lien Law. A copy of said Bond is attached as Exhibit "D." 41. On January 21, 2015, C&S served upon El Barrio a Demand for Terms of Contract pursuant to 8 of the Lien Law (the " 8 Demand") whereby El Barrio became 9

10 obligated to deliver to C&S within 30 days of such demand the terms of its contract with Monadnock for improvements to the Project, including a copy of said contract, as amended, and all applicable payment bonds, together with the amount due or to become due pursuant to said contract. A true and correct copy of the 8 Demand is attached as Exhibit "E." 42. More than 30 days has lapsed since the 8 Demand was served and El Barrio has refused and failed to furnish a response to the 8 Demand pursuant to 8 of the Lien Law, and has thereby become liable to C&S to the same extent as Monadnock, as if such labor and materials had been directly performed for and furnished to El Barrio by C&S. AS AND FOR A FIRST CAUSE OF ACTION AGAINST MONADNOCK, HANSEN, BAUSO and EL BARRIO- BREACH OF CONTRACT 43. C&S repeats, reiterates and realleges each and every allegation contained in paragraphs "1" through "42" of this verified complaint with the same force and effect as though more fully set forth at length herein. 44. C&S duly performed its obligations pursuant to the Agreement and has earned payment of the remainder of its fee, pursuant to the Agreement, which is calculated to the best of C&S' abilities to be in excess of $700, There is currently due and owing from Monadnock to C&S the principal sum of at least $700,000, which remains unpaid despite due demand therefor. 46. Monadnock breached the Agreement by, among other things, failing to make payment to C&S in the amount of at least $700, As a result ofmonadnock's breach of the Agreement, C&S has suffered and will continue to suffer damages, which damages are yet to be fully determined, but are reasonably estimated to exceed $700,

11 48. By reason of the Members' and Monadnock's fraudulent acts, as set forth herein above, their failure to adhere to corporate formalities, comingling funds and/or the under capitalization of Monadnock, Hansen and Bauso are jointly and severally liable for Monadnock's debts, including the amounts owed to C&S. 49. By reason of El Barrio's failure or refusal to provide C&S with the terms of contract pursuant to 8 of the Lien Law, El Barrio has further frustrated C&S' ability to be paid its fee and is liable for the amounts owed to C&S for labor, materials, work and services furnished and performed for the Project as if the labor, materials, work and services were provided directly from C&S to El Barrio. 50. By reason of the foregoing, C&S has been damaged and demands judgment against Monadnock, Hansen, Bauso and El Barrio in an amount to be determined at the trial of this action, but not less than $700,000, together with interest thereon and the costs and expense of this action, including, without limitation, reasonable attorney's fees. AS AND FOR A SECOND CAUSE OF ACTION AGAINST MONADNOCK, HANSEN, BA USO and EL BARRIO - UNJUST ENRICHMENT 51. C&S repeats, reiterates and realleges each and every allegation contained in paragraphs "1" through "50" of this verified complaint with the same force and effect as though more fully set forth at length herein. 52. C&S, at the special instance and request of Monadnock, performed Construction Management Services for the Project. 53. C&S fully performed all of the work and furnished all of the labor, materials, equipment and services requested by Monadnock. 11

12 54. The aforementioned work, labor, materials, equipment and services were furnished and performed by C&S in furtherance of the contract between Monadnock and El Barrio. 55. The fair and reasonable value of the work, labor, materials, equipment and services furnished and performed by C&S at Monadnock' s specific instance and request was in excess of $870,000, of which no less than $700,000 remains outstanding despite due demand therefor. 56. The work, labor, materials, equipment and services performed and furnished by C&S did enhance the value of the Project to the benefit ofmonadnock and El Barrio. 57. As a result of the foregoing, Monadnock and El Barrio have been unjustly enriched in that they have received and retained the benefit of C&S' work, labor, materials, equipment and services on the Project bestowed upon them by C&S without timely and fully payment in return. 58. Monadnock has failed to pay C&S for the fair and reasonable value of the work, labor, materials, equipment and services furnished and performed by C&S at the Project. 59. If it is determined for any reason Agreement does not govern performance, then C&S is entitled to be compensated in quantum meruit for the fair and reasonable value of the work, labor, materials, equipment and services it furnished and performed, which said amount is not less than $700, By reason of the Members' and Monadnock's fraudulent acts, as set forth herein above, their failure to adhere to corporate formalities, comingling funds and/or the 12

13 under capitalization of Monadnock, Hansen and Bauso are jointly and severally liable for Monadnock's debts, including the amounts owed to C&S. 61. By reason of El Barrio's failure or refusal to provide C&S with the terms of contract pursuant to 8 of the Lien Law, El Barrio has further frustrated C&S' ability to be paid its fee and is liable for the amounts owed to C&S for labor, materials, work and services furnished and performed for the Project as if the labor, materials, work and services were provided directly from C&S to El Barrio. 62. By reason of the foregoing, C&S has been damaged and demands judgment against Monadnock, Hansen, Bauso and El Barrio in an amount to be determined at the trial of this action, but not less than $700,000, together with interest thereon and the costs and expense ofthis action, including, without limitation, reasonable attorney's fees. AS AND FOR A THIRD CAUSE OF ACTION AGAINST MONADNOCK, HANSEN and BA USO - BREACH OF FIDUCIARY DUTY 63. C&S repeats, reiterates and realleges each and every allegation contained in paragraphs "1" through "62" of this verified complaint with the same force and effect as though more fully set forth at length herein. 64. The Agreement between Monadnock and C&S establishes a fiduciary relationship by and between Monadnock and its Members, in the first part, and C&S, in the second part, for reasons including, but not limited to: (i) Monadnock and its Members received and had sole control of trust funds received pursuant to Article 3A of the Lien Law to construct the Project that are to be used for payment of beneficiaries of the Trust, such as C&S; and (ii) it was the manifest intent of the Agreement and through their course of dealings to be associated as joint ventures, since there was a mutual contribution to the joint 13

14 undertaking through a combination of property, financial resources, effort, skill or knowledge and a provisions for the sharing of profits. 65. Monadnock and its Members had complete control of the finances and records related to the Project and the final portion of C&S' fee was to be calculated as a measure of profits earned on the Project. Therefore, C&S relied upon Monadnock and its Members to provide truthful and accurate job cost accountings so that C&S could calculate and be paid the final portion of its fee. 66. Monadnock, as co-venturer, and the Members, as managing co-venturers, were strictly obligated to make full disclosure of all material facts to C&S that could reasonably bear upon C&S' consideration due under the Agreement. 67. As set forth herein above, Monadnock and the Members breached their fiduciary duties by omitting, falsifying and misrepresenting Project costs and records, which is the very information that C&S relied upon to calculate the final portion of its fee. 68. For the foregoing reasons, Monadnock, Hansen and Bauso have breached their fiduciary duties to the detriment of C&S. 69. As a result of such breach, C&S has been damaged in an amount exceeding $700,000, to the best of C&S' calculations, plus interest, punitive damages and attorney's fees. 70. Consistent with such fiduciary obligations, C&S hereby demands a full accounting of the Monadnock's, Hansen's and Bauso's books and records. 14

15 AS AND FOR A FOURTH CAUSE OF ACTION AGAINST ALL DEFENDANTS - LIEN FORECLOSURE 71. C&S repeats, reiterates and realleges each and every allegation contained in paragraphs "l" through "70" of this verified complaint with the same force and effect as though more fully set forth at length herein. 72. C&S has performed all conditions precedent and statutory prerequisites under the Agreement, if any, and under applicable New York law and is entitled to recover the full amount due and owing, which is reasonably calculated to be in excess of $700, C&S' Lien has not been paid or canceled and no action or proceeding at law or equity has been brought for the enforcement thereof, or for the recovery of the amount therein stated to be due, or any part thereof. 74. C&S has not been made a party to any action for the enforcement of another lien against the Property or any part thereof. 75. This action has been filed within one year of the filing of the Lien with the Clerk of the County of New York. 76. Upon information and belief, the Bond is conditioned for the payment of any judgment which might be recovered by C&S in an action to enforce the Lien herein. 77. Upon information and belief, pursuant to Lien Law 19(4), the Bond now serves as substitute security for the Lien which C&S had placed upon the Property. 78. The balance of $700,000, plus interest and costs, is now due and owing to C&S under the Bond, and Monadnock and FDCM have failed or refused to pay same to C&S. 15

16 79. As a direct result ofmonadnock's and FDCM's failure or refusal to pay C&S all amounts due under the Bond, C&S has been damaged in the amount of $700,000 plus interest thereon and the cost and expense of this action, including, without limitation, reasonable attorney's fees. 80. As a result of the foregoing, Monadnock and FDCM are jointly and severally liable for breach of the Bond and the foreclosure of the Lien. 81. Any other entities or individuals not named in this action may have or may claim to have some lien against, claim to, or interest in the Premises, but such claims are either subject to or subordinate to the Lien. 82. Upon information and belief, no person or entity who is not a party to this action has any interest in or claim upon the Property, and no other person or persons have filed any liens on the Property. 83. As a result of the foregoing, C&S is entitled to foreclose on the Lien and to recover judgment against Monadnock and FDCM in an amount equal to that which is found to be due and owing to C&S upon the aforementioned Lien. AS AND FOR A FIFTH CAUSE OF ACTION AGAINST ALL DEFENDANTS - TRUST FUND DIVERSION 84. C&S repeats, reiterates and realleges each and every allegation contained in paragraphs "1" through "83" of this verified complaint with the same force and effect as though more fully set forth at length herein. 85. Upon information and belief, El Barrio provided funds to Monadnock in connection with the Project for labor, materials and equipment furnished by subcontractors and suppliers, but, upon information and belief, Monadnock has failed to pay over said sums. 16

17 86. Said moneys transferred to and received by Monadnock constitute trust assets within the meaning of Article 3-A of the Lien Law and are required to be held and applied for the payment of the cost of the Project and for the payment of expenditures arising out of the Project and for the benefit of all persons, firms and corporation furnishing and supplying labor, materials and equipment forthe Project. 87. Monadnock received trust assets and/or diverted trust assets in violation of Article 3-A of the Lien Law. 88. Upon information and belief, Monadnock consented to the diversion of trust assets in violation of Article3-A of the Lien Law. 89. Upon information and belief, Monadnock knowingly diverted trust assets in violation of Article 3-A of the Lien Law. 90. Monadnock has been served with a demand for verified statement pursuant to 76 ofthe Lien Law of the State ofnew York. 91. Monadnock failed to timely serve a Verified Statement as required by the Lien Law of the State ofnew York. 92. Upon information and belief, Monadnock received trust assets and/or diverted trust assets in violation of Article 3-A of the Lien Law. 93. Upon information and belief, Monadnock consented to the diversion of trust assets in violation of Article 3-A of the Lien Law. 94. Upon information and belief, Monadnock knowingly diverted trust assets in violation of Article 3-A of the Lien Law. 17

18 95. Upon information and belief, Hansen received trust assets and/or diverted trust assets in violation of Article 3-A of the Lien Law. 96. Upon information and belief, Hansen consented to the diversion of trust assets in violation of Article 3-A of the Lien Law. 97. Upon information and belief, Hansen knowingly diverted trust assets in violation of Article 3-A of the Lien Law. 98. Upon information and belief, Bauso received trust assets and/or diverted trust assets in violation of Article 3-A of the Lien Law. 99. Upon information and belief, Bauso consented to the diversion of trust assets in violation of Article 3-A of the Lien Law Upon information and belief, Bauso knowingly diverted trust assets m violation of Article 3-A of the Lien Law Upon information and belief, defendant, JANE DOE 11 through JANE DOE 20 received trust assets and/or dive lied trust assets in violation of Article 3-A of the Lien Law Upon information and belief, defendant, JANE DOE 11 through JANE DOE 20 knowingly diverted trust assets in violation of Article 3-A of the Lien Law One year has not lapsed since the completion of the Project This action is brought pursuant to the provisions of the Lien Law on behalf of the plaintiff and all persons, firms and corporations who have supplied labor, materials and equipment to the Project and who are not wholly paid therefore and who shall seek to be 18

19 vouched in as a party claimant in this action and to contribute to the expense thereof and to participate in the proceeding hereof Plaintiff has no adequate remedy in law. WHEREFORE, C&S demands judgment as follows: A. On the First Cause of Action, judgment against Monadnock, Hansen, Bauso and El Barrio in favor of C&S in an amount to be determined at the trial of this action, but in no event less than $700,000, together with interest thereon and the costs and expense of this action, including reasonable attorney's fees; B. On the Second Cause of Action, judgment against Monadnock, Hansen, Bauso and El Barrio in favor of C&S in an amount to be determined at the trial of this action, but in no event less than $700,000, together with interest thereon and the costs and expense of this action, including reasonable attorney's fees; C. On the Third Cause of Action, judgment against Monadnock, Hansen and Bauso in favor of C&S as follows: a. Adjudging and directing that Monadnock, Hansen and Bauso each furnish C&S a full accounting of the Project and that they furnish C&S with full, complete and unhindered access to their books and records; and b. that they are liable, jointly and severally, in favor of C&S in an amount to be determined at the trial of this action, but in no event less than $700,000, together with interest thereon, plus punitive damages and the cost and expense ofthis action, including, without limitation, reasonable attorney's fees. 19

20 D. On the Fourth Cause of Action, judgment against Monadnock and FDCM in favor of C&S as follows: a. Adjudging and determining the equities of all parties to this action and determining the validity, extent, and priority of each and all of the liens and claims which may be presented and asserted herein; b. Adjudging and determining that C&S, by filing its Lien, as set forth above, acquired a good, valid, and subsisting lien against the Property in the sum of $700,000, together with interest thereon; c. That judgment be rendered in form only against the real property hereinabove described. That Monadnock and FDCM be adjudge liable to C&S for the amount of its Lien, in accordance with the terms and conditions of the Bond, with interest and the costs and disbursements of this action; d. That FDCM and Monadnock be directed to satisfy C&S' Lien in the amount of $700,000 plus interest thereon to the date of such payment, together with the costs and disbursements of this action; e. That C&S have judgment against FDCM, Monadnock and El Barrio for any deficiency that may remain over and above the penal sum of the Bond; f. That, in case it be determined that C&S does not have a valid and subsisting lien upon the Property that C&S has a personal judgment 20

21 against Monadnock and El Barrio for the sum of $700,000 together with interest thereon, and the costs and disbursements of this action; and g. Granting such other and further or different relief as the Court may deem just, proper and equitable under the circumstances. E. On the Fifth Cause of Action, judgment against Monadnock, Hansen, Bauso and JOHN DOE 11 through JOHN DOE 20, jointly and severally, as follows: a. detemlining that at least the amount of $700,000 paid Monadnock, Hansen, Bauso and JOHN DOE 11 through JOHN DOE 20, be declared trust funds and they trustees thereof for the benefit and purpose of payment of all persons, firms, or corporations who have rendered services or furnished materials in connection with the Project, and for the determination and allocation of the respective rights and interest of such creditors and claimants in and to such trust funds; b. Enjoining the defendants, Monadnock, Hansen, Bauso and JOHN DOE 11 through JOHN DOE 20, from making any further diversions of the sums disbursed or advanced to them. c. Finding Monadnock, Hansen, Bauso and JOHN DOE 11 through JOHN DOE 20 jointly and severally liable to plaintiff, C&S, in the sum of $700,000, together with interest thereon; and d. Awarding attorney's fees incurred by plaintiff, C&S, in bringing this representative action pursuant to CPLR 909; and 21

22 F. The costs and disbursements of this action, along with such other and further relief as to this court may seemjust, proper and equitable. Dated: White Plains, New York April 3, 2015 THE CERMELE LAW FIRM PLLC Attorney, 1j Plaintiff 2 Westc ester Park Drive, Suite 205 White Plains, NY Tel: (914) Fax: (914) Eml: mc@mcnylawfinn.com 22

23 VERIFICATION 1-~~A STATE OF"NEW-YOru<. Pi NGLt...f\-5 COUNTYOF~ER ) ) ) SS. Anthony Sinocchi, being duly swam deposes and says: VERIFICATION I, ANTHONY SINOCCHI, being duly sworn declare as follows: 1. I am a principal owner of C&S Construction and Consulting Group LLC ("C&S"), the plaintiff in this action. I anl authorized to make this verification on behalf of C&S. 2. I have personal knowledge of C&S and its activities, including all.activities related to this action. 3. I declare that I have read the foregoing complaint, and that the facts alleged therein are true and correct to the best of my knowledge and belief. I understand that a false statement in this verification will subject me to penalties of perjury. Sworn and subscribed to before me this 1 *'- day of April, UllWi.1uL)!_)i!./dtu~J NOTARY