FILED: NEW YORK COUNTY CLERK 02/06/2014 INDEX NO /2014 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/06/2014

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1 FILED: NEW YORK COUNTY CLERK 02/06/2014 INDEX NO /2014 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/06/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK )( TRIUMPH CONSTRUCTION CORP. and PIPELINE CONSTRUCTION, LLC, Index No.: -against- CEMUSA NY, LLC, Plaintiffs, Defendant. SUMMONS )( TO THE ABOVE-NAMED DEFENDANT: YOU ARE HEREBY SUMMONED to answer the Verified Complaint of the Plaintiffs, a copy of which is herewith served upon you, and to serve copies of your answer upon the undersigned as attorneys for the Plaintiffs, Sullivan Gardner, PC, whose address is 7 East 20th Street New York, New York 10003, within twenty (20) days after service of the Verified Complaint, exclusive of the day of service, or within thirty (30) days if the completion of service is made in any manner other than by personal delivery within the state. In case of your failure to answer the Verified Complaint, judgment will be taken against you by default for the relief demanded therein. Dated: New York, New York February 6, 2014 By: / Brian Gardner Attorneys for Plaintiffs 7 East 20th Street New York, New York (212)

2 TO: CEMUSA NY, LLC 420 LEXINGTON AVE STE NEW YORK, NEW YORK, 10170

3 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK )( TRIUMPH CONSTRUCTION CORP. and PIPELINE CONSTRUCTION, LLC, Index No.: -against- CEMUSA NY, LLC, Plaintiffs, Defendant. COMPLAINT )( Plaintiffs TRIUMPH CONSTRUCTION CORP. and PIPELINE CONSTRUCTION, LLC by and through their attorneys, Sullivan Gardner P.C., complaining of Defendant CEMUSA NY, LLC allege as follows: PARTIES 1. Plaintiff TRIUMPH CONSTRUCTION CORP. ("Triumph") is a domestic corporation with its principal place of business located at 1354 Seneca Avenue, Bronx, New York Plaintiff PIPELINE CONSTRUCTION, LLC ("Pipeline") is a domestic business corporation with its principal place of business located at1354 Seneca Avenue, Bronx, New York Defendant CEMUSA NY, LLC ("Cemusa") is a domestic corporation with its principal place ofbusiness located at 420 Lexington Avenue- Suite 2533, New York, New York FACTS 4. On or about May 19, 2006, Defendant Cemusa entered into a contract with the City ofnew York, acting through its Department oftransportation ("Franchise

4 Agreement"). Pursuant the Franchise Agreement, the City of New York granted Defendant Cemusa a non-exclusive franchise to design, install, operate and maintain bus stop shelters, newsstands, self-cleaning automatic public toilets, and certain public service structures in the City ofnew York. 5. On or about February 9, 2010, Defendant Cemusa entered into an Installation Service Agreement with the Plaintiff Triumph for the installation of Bus Shelter Units ("Bus Shelter Agreement"). The Bus Shelter Agreement provided that Plaintiff Triumph install the required number of Bus Shelter Units anywhere within the five (5) boroughs of the City ofnew York as instructed by Cemusa. In consideration thereof, Defendant Cemusa agreed to pay Plaintiff Triumph for each Bus Shelter Unit within thirty (30) days of completion and acceptance by Cemusa. 6. On or about February 9, 2010, Defendant Cemusa entered into a separate Installation Service Agreement with Plaintiff Triumph for the installation of Newsstand Units ("Newsstand Agreement"). The Newsstand Unit Agreement provided that Plaintiff Triumph install the required number of Newsstand Units anywhere within the five (5) boroughs of the City ofnew York as instructed by Cemusa. In consideration thereof, Defendant Cemusa agreed to pay Plaintiff Triumph for each Newsstand Unit within thirty (30) days of completion and acceptance by Cemusa. 7. Pursuant to the Bus Shelter Agreement and Newsstand Agreement (collectively "Agreements"), from in or about February 2010 to November 2013, Triumph performed all work, labor and services called for by the Agreements. The foregoing work was fully performed by the Plaintiff, invoiced to the Defendant and fully accepted and approved by Defendant

5 Cemusa. To date, Cemusa has failed to render payment of outstanding invoices in the amount of $47, Furthemore, the aforementioned Agreements called for certain milling and paving work to be provided by Triumph to Cemusa at the contractually agreed upon rate of $25.00 per square foot. Triumph performed all work, labor and services, including all milling and paving, called for by the Agreements. The foregoing work was fully performed by the Plaintiff, and fully accepted and approved by Defendant Cemusa. Plaintiff properly submitted documents to Cemusa establishing the milling and paving square footage, which square footage has been accepted and agreed to by Cemusa. To date, Cemusa has failed to render payment in the amount of $309, for the milling and paving work. 9. In addition, Plaintiff Pipeline rendered services at the request ofcemusa in the form of demolition of pre-existing Newsstands and Bus Shelters. The work, labor and services associated with the demolition of the pre-existing Newsstands and Bus Shelters was fully performed by Plaintiff Pipeline, and accepted and approved by Defendant Cemusa. Cemusa requested this work not included in the Agreements at agreed upon prices with Pipeline for it. Pipeline properly invoiced Cemusa for the completed and accepted work in the amount of $19,750.00, which is at present all over thirty (30) days owed, and remains outstanding and unpaid (the "Pipeline Invoices"). Cemusa has not objected to any of the Pipeline Invoices, yet has failed to make any payments thereon. Prior to the Pipeline Invoices, beginning in or about March 2010, Cemusa regularly paid Pipeline for its work invoiced in the same manner. 10. To date, a total balance of$375, ($19, to Pipeline and $356, to Triumph) has become properly due and payable, and remains outstanding, for the construction/demolition, and milling and paving services rendered to the Defendant Cemusa

6 pursuant to the Agreements with Plaintiffs Triumph and Pipeline. The Plaintiffs have repeatedly invoiced, requisitioned, and otherwise duly demanded this amount to Cemusa, which has recognized the amount as duly and properly owed, however, Cemusa has failed and refused to make payment of this remaining balance. No valid basis exists for Cemusa's non-payment. AS AND FOR A FIRST CAUSE OF ACTION ON BEHALF OF TRIUMPH Breach of Contract Against Cemusa 11. Plaintiff Triumph repeats and realleges each of the foregoing paragraphs as if fully set forth herein. 12. The Plaintiff fully provided all construction services, and milling and paving work required of it pursuant to the Agreements. The Agreements were binding, valid, and fully enforceable contracts between Cemusa and Triumph. Triumph fully performed its obligations under the Agreements. Cemusa agreed to pay Triumph for its services within 30 days of their completion and acceptance. More than 30 days has passed form their provision and acceptance, without payment thereon. 13. Cemusa fully accepted the construction services and milling and paving work performed pursuant to the Agreements, yet Cemusa has failed and refused to pay for those services, leaving an outstanding balance due on the Invoices to the Plaintiff of $356, for the construction services. This amount is past due and has been repeatedly demanded by Triumph. 14. By reason of the foregoing, Defendant materially breached its Agreements and obligations to Plaintiff, causing damage to Plaintiff in an amount of $356,155.00, together with interest, reasonable attorneys' fees and disbursements and costs of the action.

7 15. Wherefore, the Plaintiff requests judgment against Defendant Cemusa in an amount to be determined at trial of $356,155.00, together with interest, reasonable attorneys' fees and disbursements and costs of the action. forth herein. AS AND FOR A SECOND CAUSE OF ACTION ON BEHALF OF TRIUMPH Account Stated Against Cemusa 16. Plaintiff Triumph repeats and realleges the foregoing paragraphs as if fully set 17. From December, 2012 to February, 2014, the Plaintiff duly submitted invoices and demands for payment to Cemusa for the construction services, and milling and paving work performed pursuant to the Agreements, including, inter alia, the Invoices in the amount currently due, of$356, Cemusa received the Plaintiffs invoices and demands for payment, and has failed to object to said invoices or demands for payment within a reasonable amount of time. As such, Cemusa has accepted those invoices as accurate and has promised to pay same. 19. Wherefore, by reason of the foregoing, Plaintiff Triumph demands judgment against the Defendant in an amount of $356,155.00, together with interest, reasonable attorneys' fees and disbursements and costs of the action. forth herein. AS AND FOR A THIRD CAUSE OF ACTION ON BEHALF OF TRIUMPH Quantum Meruit Against Cemusa 20. Plaintiff Triumph repeats and realleges the foregoing paragraphs as if fully set

8 21. The Plaintiff Triumph provided construction services, and milling and paving work, with the express understanding and expectation that Cemusa would compensate the Plaintiff for same. 22. The construction services for which payment remains due have a fair and reasonable value is not less than $356, Cemusa was aware of, and accepted the construction services, and milling and paving work without objection, and Cemusa reaped substantial benefit from the construction services provided. 23. Plaintiff reasonably notified Cemusa, and Cemusa was aware, that Plaintiff expected payment in return for the construction services, and milling and paving work. Cemusa knew, and/or should have known, that payment was reasonably expected for all of the construction services, and milling and paving work provided by Plaintiff. Cemusa has failed to remit any payments when demanded of the amount currently fully due and owing for the fair and reasonable amount of unpaid services provided, which is not less than $356, As a result of the foregoing, principles of equity and good conscience mandate that Cemusa pay to Plaintiff the fair and reasonable value of the construction services provided which have not yet been paid for. 24. Plaintiff has no adequate remedy at law. 25. Wherefore, the Plaintiff Triumph requests judgment against Defendant Cemusa in an amount to be determined at trial, but in no event less than $356,155.00, together with interest, reasonable attorneys' fees and disbursements and costs of the action. forth herein. AS AND FOR A FOURTH CAUSE OF ACTION ON BEHALF OF TRIUMPH Unjust Enrichment Against Defendant Cemusa 26. Plaintiff Triumph repeats and realleges the foregoing paragraphs as if fully set

9 27. Cemusa has benefited from the Plaintiffs construction services, and milling and paving work, and has been unjustly enriched by obtaining these services and not paying for them. Cemusa requested, and accepted these services, knowing that payment was expected therefore, yet has refused to pay the Plaintiff, for all of the services provided. 28. As such, as an alternative to the theories of recovery pled herein, principles of equity and good conscience mandate that Plaintiff is entitled to recover from Cemusa the reasonable value of the construction services, and milling and paving work provided, of not less than $356, Wherefore, the Plaintiff requests judgment against Defendant Cemusa in an amount to be determined at trial, but in no event less than $376,000.00, together with interest, reasonable attorneys' fees and disbursements and costs of the action. AS AND FOR A FIFTH CAUSE OF ACTION ON BEHALF OF PIPELINE Breach of Contract Against Cemusa 30. Plaintiff Pipeline repeats and realleges each of the foregoing paragraphs as if fully set forth herein. 31. The Plaintiff Pipeline fully provided all demolition services required as expressly requested and agreed to by Defendant Cemusa, pursuant to the agreed upon prices with Cemusa. Cemusa fully accepted the demolition services, yet has failed and refused to pay for those services, leaving an outstanding balance due to the Plaintiff of$19, By reason of the foregoing, Defendant materially breached its express agreement and obligations to Plaintiff, causing damage to Plaintiff in an amount of $19,750.00, together with interest, reasonable attorneys' fees and disbursements and costs of the action.

10 33. Wherefore, the Plaintiff Pipeline requests judgment against Defendant Cemusa in an amount to be determined at trial, but in no event less than $19,750.00, together with interest, reasonable attorneys' fees and disbursements and costs of the action. forth herein. AS AND FOR A SIXTH CAUSE OF ACTION ON BEHALF OF PIPELINE Account Stated Against Cemusa 34. Plaintiff Pipeline repeats and realleges the foregoing paragraphs as if fully set 35. From December, 2012 to November, 2013, the Plaintiff duly submitted invoices to Cemusa for the demolition services performed pursuant to the express agreement of Cemusa, including, inter alia, the amount currently due, of$19, Cemusa received the Plaintiff's invoices, and has failed to object to said invoices within a reasonable amount of time. As such, Cemusa has accepted those invoices as accurate and has promised to pay same. 37. Wherefore, by reason of the foregoing, Plaintiff Pipeline demands judgment against the Defendant in an amount of $19,750.00, together with interest, reasonable attorneys' fees and disbursements and costs of the action. AS AND FOR A SEVENTH CAUSE OF ACTION ON BEHALF OF PIPELINE Quantum Meruit Against Cemusa 38. Plaintiff Pipeline repeats and realleges the foregoing paragraphs as if fully set forth herein. 39. The Plaintiff Pipeline provided demolition services with the express understanding and expectation that Cemusa would compensate the Plaintiff for same. 40. The demolition services for which payment remains due has a fair and reasonable value estimated is not less than $19, Cemusa was aware of, and accepted the demolition

11 services without objection, and Cemusa reaped substantial benefit from the demolition services provided. 41. Plaintiff Pipeline reasonably notified Cemusa, and Cemusa was aware, that Plaintiff expected payment in return for the demolition services. Cemusa knew, and/or should have known, that payment was reasonably expected for all of the demolition services provided by Plaintiff. Cemusa has failed to remit any payments when demanded of the amount currently fully due and owing for the fair and reasonable unpaid demolition services provided, is no less than $19, As a result of the foregoing, principles of equity and good conscience mandate that Cemusa pay to Plaintiff the fair and reasonable value of the demolition services provided which have not yet been paid for. 42. Plaintiff has no adequate remedy at law. 43. Wherefore, the Plaintiff Pipeline requests judgment against Defendant Cemusa in an amount to be determined at trial, but in no event less than $19,750.00, together with interest, reasonable attorneys' fees and disbursements and costs of the action. AS AND FOR AN EIGHTH CAUSE OF ACTION ON BEHALF OF PIPELINE Unjust Enrichment Against Defendant Cemusa forth herein. 44. Plaintiff Pipeline repeats and realleges the foregoing paragraphs as if fully set 45. Cemusa has benefited from the Plaintiffs demolition servtces, and has been unjustly enriched by obtaining these services and not paying for them.. Cemusa requested, and accepted these services, knowing that payment was expected therefore, yet has refused to pay the Plaintiff, for all of the demolition services provided. 46. As such, as an alternative to the theories of recovery pled herein, principles of

12 equity and good conscience mandate that Plaintiff is entitled to recover from Cemusa the reasonable value ofthe demolition services rendered, of not less than $19, Wherefore, the Plaintiff requests judgment against Defendant Cemusa m an amount to be determined at trial, but in no event less than $19,750.00, together with interest, reasonable attorneys' fees and disbursements and costs of the action. WHEREFORE, the Plaintiff respectfully requests the following relief: A. On the First Cause of Action on Behalf of Triumph for Breach of Contract: (i) Judgment against Defendant Cemusa in an amount of $356, together with interest at the maximum statutory rate; (ii) Judgment against Cemusa for Plaintiffs costs, disbursements, and reasonable attorney's fees incurred in the prosecution of this action; (iii) B. On the Second Cause of Action on Behalf of Triumph for Account Stated: (i) Judgment against Defendant Cemusa, in an amount of $356,155.00, together with interest at the maximum statutory rate; (ii) Judgment against Defendant Cemusa for Plaintiffs costs, disbursements, and reasonable attorney's fees incurred in the prosecution of this action; (iii) C. On the Third Cause of Action on Behalf of Triumph for Quantum Meruit: (i) Judgment against Defendant Cemusa, in an amount not less than $356,155.00, together with interest at the maximum statutory rate; (ii) Judgment against Defendant Cemusa for Plaintiffs costs, disbursements, and reasonable attorney's fees incurred in the prosecution of this action;

13 (iii) D. On the Fourth Cause of Action on Behalf of Triumph for Unjust Enrichment: (i) Judgment against Defendant Cemusa, in an amount not less than $356,155.00, together with interest at the maximum statutory rate; (ii) Judgment against Defendant Cemusa for Plaintiffs costs, disbursements, and reasonable attorney's fees incurred in the prosecution of this action; (iii) E. On the Fifth Cause of Action on Behalf of Pipeline for Breach of Contract: (i) Judgment against Defendant Cemusa, in an amount not less than $19,750.00, together with interest at the maximum statutory rate; (ii) Judgment against Defendant Cemusa for Plaintiffs costs, disbursements, and reasonable attorney's fees incurred in the prosecution of this action; (iii) F. On the Sixth Cause of Action on Behalf of Pipeline for Account Stated: (i) Judgment against Defendant Cemusa, in an amount estimated to be not less than $19,750.00, together with interest at the maximum statutory rate; (ii) Judgment against Defendant Cemusa for Plaintiffs costs, disbursements, and reasonable attorney's fees incurred in the prosecution of this action; (iii) F. On the Seventh Cause of Action on Behalf of Pipeline for Quantum Meruit: (i) Judgment against Defendant Cemusa, in an amount estimated to be not less than $19,750.00, together with interest at the maximum statutory rate;

14 (ii) Judgment against Defendant Cemusa for Plaintiffs costs, disbursements, and reasonable attorney's fees incurred in the prosecution of this action; (iii) G. On the Eighth Cause of Action on Behalf of Pipeline for Unjust Enrichment: (i) Judgment against Defendant Cemusa, in an amount estimated to be not less than $19,750.00, together with interest at the maximum statutory rate; (ii) Judgment against Defendant Cemusa for Plaintiffs costs, disbursements, and reasonable attorney's fees incurred in the prosecution of this action; (iii) Dated: New York, New York February 6, 2014 SULLIVAN GARDNER P.C. By: /~, Brian 6ardner Attorneys [or the Plaintiff 7 East 20t Street New York, New York (212)

15 Attorney Verification Brian Gardner states the following to be true under the penalties of perjury: 1. I am counsel to Plaintiffs. I am a member of the Bar of this Court and am familiar with the facts and proceedings in this action as they pertain to this Complaint. 2. I have read the foregoing Complaint and believe its contents to be true upon information and belief. 3. Counsel makes this verification on behalf of the Plaintiffs because the office of the Plaintiffs is located outside the County ofnew York, where counsel maintains its office. 4. I base this verification on my review of certain documents and conversations with certain persons related to Plaintiffs. Dated: New York, New York February 6, 2014 SULLIVAN GARDNER PC //;;;:?,, / Brian Gardner