FILED: NEW YORK COUNTY CLERK 11/18/2016 02:03 PM INDEX NO. 157522/2016 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 11/18/2016 SUPREME COURT OF THE STATE NEW YORK COUNTY OF NEW YORK -----------------------------------------------------------------------)( ANDREW JAMES INTERIORS, INC., on behalf of itself and all other persons similarly situated as trust fund beneficiaries of Lien Law trust of which MCGOVERN & COMP ANY, LLC is a trustee, Plaintiff, MCGOVERN & COMPANY, LLC, STEPSTONE GROUP L.P., 885 THIRD OWNER LLC, CONSOLIDATED CARPET WORKROOM, LLC, AIR STREAM AIR CONITIONING CORP., SOVEREIGN MECHANICAL CORP., MODCO SUPPLY INC., CITY VIEW BLINDS OF N.Y. INC., ARCHITECTURAL FLOORING CARE, LLC, S&J ENTRANCE & WINDOW SPECIALIST, INC., PAR PLUMBING CO., INC., ESS & VEE ACOUSTICAL CONTRACTORS, INC., GOTHAM GENERAL COMPANY CARPENTRY INC., ALL STATE INTERIOR DEMOLITION INC., METROPOLITAN 885 THIRD A VENUE LEASEHOLD, LLC, U.S. SPECIALTY INSURANCE COMPANY, DANIEL G. MCGOVERN AND "JOHN DOE ONE" THROUGH "JOHN DOE TEN", Index No. 157522/16 ANSWER OF MCGOVERN LLC AND DANIEL MCGOVERN TO CROSS-CLAIM OF S&J Defendants. -----------------------------------------------------------------------)( PAR PLUMBING CO., INC., Cross-Claim Plaintiff, 885 3RD A VENUE REAL TY OWNER, LLC, Cross-Claim Defendant. -----------------------------------------------------------------------)( Defendants McGovern & Company, LLC and Daniel McGovern, by their attorneys, Howard Blum, P. C., for their Answer to the Cross-Claims of S&J Entrance & Window Specialists, Inc., respectfully allege: 1 of 6
1. Deny knowledge or information sufficient to form a belief as to the allegations contained in paragraphs 7, 8 and 10 through 23. AS TO THE FIRST CROSS-CLAIM 2. Repeat and reiterate the responses to the allegations incorporated in paragraph 25 as if fully set forth at length herein. 3. Deny the allegations contained in paragraphs 26 through 29, except admit that certain work was performed and refer to the contract for its true terms and conditions. AS TO THE SECOND CROSS-CLAIM 4. Repeat and reiterate the responses to the allegations incorporated in paragraph 30 as if fully set forth at length herein 5. Deny the allegations contained in paragraphs 31 through 34, except admit that certain work was performed. AS TO THE THIRD CROSS-CLAIM 6. Repeat and reiterate the responses to the allegations incorporated in paragraph 35 as if fully set forth at length herein 7. Deny knowledge or information sufficient to form a belief as to the allegations as to McGovern contained in paragraphs 36 through 37, and refer to the Lien Law. 8. Deny the allegations contained in paragraph 38. FIRST AFFIRMATIVE DEFENSE 9. The Cross-Claims of S&J fail to state a cause of action upon which relief may be granted. SECOND AFFIRMATIVE DEFENSE 10. No extra work was ordered by McGovern. 2 2 of 6
THIRD AFFIRMATIVE DEFENSE 11. S&J' s claims are barred by the Doctrine of Estoppel. FOURTH AFFIRMATIVE DEFENSE 12. S&J's claims are barred by the Doctrine of Waiver. FIFTH AFFIRMATIVE DEFENSE 13. S&J' s claims are barred by the Doctrine of Laches. SIXTH AFFIRMATIVE DEFENSE 14. S&J's claims are barred by the Doctrine of Unclean Hands. SEVENTH AFFIRMATIVE DEFENSE 15. S&J' s claims are barred by the Doctrine of Accord and Satisfaction. EIGHTH AFFIRMATIVE DEFENSE 16. S&J's claims are subject to set-off, recoupment, and/or reduction to the extent that any amounts that may be due and owing from McGovern for costs, expenses, credits, and/or backcharges incurred by and/or charged against McGovern in connection with S&J's performance, provision, and/or failure to perform/provide the services, labor, and/or equipment which S&J subcontracted with McGovern to perform. NINTH AFFIRMATIVE DEFENSE 17. S&J's claims are subject to set-off, recoupment, and/or reduction to the extent that S&J's own conduct and/or the conduct of S&J's agents, employees, and other parties outside of the control of McGovern are responsible for the alleged damages complained of by S&J. TENTH AFFRIMATIVE DEFENSE 18. McGovern reserves its right to amend this Answer to assert additional affirmative defenses on the completion of its investigation and discovery herein. 3 3 of 6
WHEREFORE, defendants McGovern LLC and Daniel McGovern demand judgment dismissing the Cross-Claims of S&J, and for such further relief as this Court deems just and proper under the circumstances. Dated: November J~, 2016 Yours, etc. oward Blum, Esq. Attorneys for Defendants McGovern & Company, LLC and Daniel McGovern 286 Madison A venue, l 8 1 h Floor New York, New York 10017 (212) 557-3000 hbdoc:c/mcgovern-andrew james answ to s&j 4 4 of 6
VERIFICATION STATE OF NEW YORK ) )ss.: COUNTY OF NEW YORK ) DANIEL MCGOVERN, being duly sworn, says: I am a Member of defendant McGovern & Company, LLC and a defendant. I have read the foregoing Answer and know the contents thereof, and that the same is true to my knowledge, except as to those matters therein stated to be alleged upon information and belief, and as to those matters, I believe them to be true. The grounds of my belief as to all matters not stated upon my knowledge is as follows: invoices, correspondence, with employees of defendant. --' Daniel McGovern 5 of 6
Index No.: 157552 Year 2016 SUPREME COURT OF THE ST A TE OF NEW YORK COUNTY OF NEW YORK ANDREW JAMES INTERIORS, INC., on behalf of itself and all other persons similarly situated as trust fund beneficiaries of Lien Law trust of which MCGOVERN & COMPANY, LLC is a trustee, MCGOVERN & COMPANY, LLC, STEPSTONE GROUP L.P., 885 THIRD OWNER LLC, CON SO LIDA TED CARPET WORKROOM, LLC, AIR STREAM AIR CONITIONING CORP., SOVEREIGN MECHANICAL CORP., MODCO SUPPLY INC., CITY VIEW BLINDS OF N.Y. INC., ARCHITECTURAL FLOORING CARE, LLC, S&J ENTRANCE & WINDOW SPECIALIST, INC., PAR PLUMBING CO., INC., ESS & VEE ACOUSTICAL CONTRACTORS, INC., GOTHAM GENERAL COMPANY CARPENTRY INC., ALL STATE INTERIOR DEMOLITION INC., METROPOLITAN 885 THIRD A VENUE LEASEHOLD, LLC, U.S. SPECIALTY INSURANCE COMPANY, DANIEL G. MCGOVERN AND "JOHN DOE ONE" THROUGH "JOHN DOE TEN'', PAR PLUMBING CO., INC., Plaintiff, Defendants. Cross-Claim Plaintiff, 885 3Ro A VENUE REAL TY OWNER, LLC, Cross-Claim Defendants. ANSWER OF MCGOVERN LLC AND DANIEL MCGOVERN TO CROSS-CLAIM OF S&J ompliance) To Dated, ---==== Attorney(s) for - -----=..=,..._- -=--- =-=~~=-- - - HOW ARD BLUM, P.C. Attorneys for Defendants McGovern & Company, LLC and Daniel McGovern 286 Madison Avenue - l 8 1 h Floor New York, New York 10017 (212) 557-3000 -=~--=== 6 of 6