FILED: NEW YORK COUNTY CLERK 02/18/2015 03:03 PM INDEX NO. 650487/2015 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/18/2015 SUPREME COURT OF THE STATE OF NEW YORK Index No.: COUNTY OF NEW YORK -----------------------------------------------------------------------X Plaintiff designates New York THOMAS D AGOSTINO, JR. : County as the place of trial. : The basis of the venue is : where both parties reside and Plaintiff, : where the contract was : executed. -against- : : SUMMONS : QUINN-ONELLI INC., D/B/A UNLIMITED DESIGN : : Defendant. : -----------------------------------------------------------------------X TO THE ABOVE-NAMED DEFENDANT: YOU ARE HEREBY SUMMONED to appear in the Supreme Court of the City of New York, County of New York, at the office of the Clerk of said Court at 60 Centre Street, in the County of New York, City and State of New York within the time provided by law as noted below and to file your answer to the annexed complaint with the Clerk. In case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the Complaint, together with the costs of this action. Dated: February 11, 2014 New York, New York Very truly yours, J. R. Cardenas J. ROBERTO CARDENAS Cardenas Law Office Attorneys for the Plaintiff 119 West 57th Street, Suite 1215 New York, New York 10019 (212) 977-7095 TO: Quinn-Onelli Inc. d/b/a Unlimited Designs 132 Waverly Avenue Mamaroneck, New York 10543 NOTE: The law provides that: (a) If this summons is served by its delivery to you personally within the City of New York, you must appear and answer within TWENTY days after such service; or (b) if this summons is served by delivery to any person other than you personally, or is served outside the City of New York, or by publication, or by any means other than personal delivery to you within the City of New York, you are allowed THIRTY days after the proof of service thereof is filed with the Clerk of this Court within which to appear and answer.
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------------------------------------------------------X THOMAS D AGOSTINO, JR. -against- Plaintiff, QUINN-ONELLI INC., D/B/A UNLIMITED DESIGN Index No.: VERIFIED COMPLAINT Defendant. ------------------------------------------------------------------X Plaintiff, THOMAS D AGOSTINO, JR., by his attorney, J. Roberto Cardenas as and for his complaint against Defendant QUINN-ONELLI, INC. d/b/a UNLIMITED DESIGN hereby alleges as follows: INTRODUCTION 1. This is an action for breach of contract and a declaratory judgment arising out of a contract for renovations and construction work done to Plaintiff s apartment located at 179 East 70 th Street, Penthouse and 21 st Floor, New York, New York 10021. 2. By this complaint Plaintiff alleges that Defendant is in breach of contract for failure to tender the Premises in a timely manner as agreed to in the contract and for failure to deliver a workmanlike and professional finished product. 3. Plaintiff further seeks a judgment declaring that no further monies are owed to Defendant under the terms of the contract. PARTIES 4. At all times set forth herein, Plaintiff Thomas D Agostino, Jr. (hereinafter D Agostino or Plaintiff) was and is an individual with a residence of 179 East 70 th Street, Penthouse, New York New York (hereinafter Premises ). 1
5. Upon information and belief, at all times set forth herein, Defendant Quinn- Onelli, Inc. d/b/a Unlimited Design (hereinafter Unlimited or Defendant) was, and is, a corporation organized under New York Law, having an office at 132 Waverly Avenue, Mamaroneck, New York. FACTS 6. On or about June 17, 2013, D Agostino entered into a contract with Unlimited for which Unlimited acted as the General Contractor for various renovation and construction work as agreed to and defined in Paragraph 6.3 of the Contract. (Please see a copy of the Contract attached hereto as Exhibit A ). The Premises Were Not Tendered in a Timely Manner 7. The Work began on or about June 17, 2013. 8. As per the terms of the Contract, Unlimited agreed to achieve Substantial Completion of the entire Work no later than 5 months from the date of commencement or on or about November 17, 2013. (See Paragraph 2.3 of Exhibit A ). 9. As defined in the Contract, Substantial Completion is the stage in the progress of the Work when the Work or designated portion thereof is sufficiently complete in accordance with the Contract Documents so that the Owner can occupy or utilize the Work for its intended use. (See Paragraph 14.4.1 of Exhibit A.) 10. Work continued well into 2014 with Defendant sending a completion schedule on or about April 22, 2014, which set forth that in fact the work would be completed on, or about May 2, 2014. 11. The Work was substantially completed on or about June 10, 2014. 12. As such the Premises were tendered approximately 195 days beyond the 2
completion date anticipated in the contract. 13. As per the terms of the Contract; if the General Contractor fails to achieve Substantial Completion of all the Work within the Contract Time, the Owner shall be entitled to retain from any sums due or to become due to the General Contractor or recover from the General Contractor, as liquidated damages and not as a penalty, the following per diem amounts commencing the first day following expiration of the contract time and continuing for each calendar day until actual date of Substantial Completion: $250.00/ calendar day. (See Paragraph 2.4 of Exhibit A ). 14. Thus, as per the Contract, Unlimited owes Plaintiff at least $48,750.00 as liquidated damages plus statutory damages from on or about June 10, 2014. 15. Further, since Plaintiff was expecting to move in on or about December 1, 2013, he was forced to seek alternate housing while awaiting substantial completion off the apartment. 16. Plaintiff remained in alternate living arrangements until on or about March 2013 when, not withstanding that the apartment was still not substantially complete, he moved in and slept on a mattress on the floor. 17. As such, from on or about December 1, 2013 until on or about March 2014, Plaintiff expended monies in seeking and maintaining alternate living accommodations because the apartment was not substantially complete. Work Completed in an Unworkmanlike Fashion 18. The scope of the renovation and construction work to be completed by Unlimited is set forth in Paragraph 5.1.6 of the Contract. 19. However, contrary to the representations made by Unlimited in its contract, Plaintiff found that once the Premises was eventually turned over, it contained numerous 3
material defects and was not completed in a manner consistent with the construction documents, the Contract Documents, acceptable industry standards and oral representations made to Plaintiff by Unlimited. 20. Specifically, the defects caused by the Defendant include, but are not limited to: a. improperly installed hardwood floors such that the floor is lifting, damaged and is inconsistently stained; b. unfinished exterior HVAC duct work that is currently secured with duct tape; c. incomplete service entrance; d. failure to construct and/or install a hidden access door for the electrical panel; e. improperly installed, damaged or scratched door hardware; f. incomplete and damaged millwork in various locations including the master closet and entry foyer; g. improperly installed full-length mirrors of which one ultimately fell; h. scratches to the antique mirror bar back; i. permanent and unfixable damage to the new sliding terrace doors caused by the hot metal sparks from machining the metal studs which pock marked the glass doors; j. incorrect installation of marble shower floor with improper drainage; k. failure to provide architect plumber sign-off l. failure to provide architect electrician sign-off and pay the electrician s amount owed; and m. failure to pay the HVAC sub-contractor. 21. On numerous occasions, Plaintiff discussed with Defendant his dissatisfaction with the renovation work, to no avail. 22. On or about June 10, 2014, Plaintiff received a final invoice from Defendant in 4
the amount of $43,755.33, ostensibly to cover monies due on the Contract for work that was allegedly completed. 23. On or about August 22, 2014, Plaintiff through the undersigned sent Defendant a letter in an effort to try and resolve this matter amicably and fairly and to mitigate damages. 24. On or about August 27, 2014, Plaintiff was served with a mechanics lien filed by Defendant on the Premises in the amount $43,755.33 for monies allegedly owed by Plaintiff. 25. Upon information and belief, the amount necessary to be paid by Plaintiff to repair and correct that for which Unlimited was contracted is in excess of $100,000.00. 26. Despite Plaintiff s numerous attempts to try and fix the various deficiencies caused by the unprofessional and unworkmanlike practices carried out by Defendant, Unlimited has made no effort to correct the deficiencies in its work or mitigate damages incurred by the Plaintiff. 27. Plaintiff commenced this action thereafter. AS AND FOR A FIRST CAUSE OF ACTION (Based Upon a Breach of Contract) 28. Plaintiff repeats and realleges each of the foregoing allegations thereby incorporating them into this cause of action by reference. 29. Defendant contracted to deliver to Plaintiff the premises having achieved substantial completion of the scope of work as agreed to in the Contract by on or about November 17, 2013. 30. Instead, the Premises were turned over to Plaintiff on or about June 10, 2014, more than 6 months beyond the date agreed to in the Contract at which time the Plaintiff discovered that the work was done in a shoddy and unworkmanlike manner as more fully set forth above. 5
31. Therefore, Defendant is in breach of contract and/or warranty to Plaintiff. 32. Wherefore Defendant is liable to Plaintiff for the costs to repair and place the Premises in the condition it should have been in had the contract not been breached which, upon information and belief, will cost in excess of $100,000.00 to repair and correct. AS AND FOR A SECOND CAUSE OF ACTION (Based Upon a Breach of Contract, Seeking Consequential and Incidental Damages) 33. Contrary to Defendant s promise to deliver the premises to Plaintiff substantially completed by on or about November 17, 2013, the Premises were turned over to Plaintiff on or about June 10, 2014, more 6 months beyond the date agreed to in the Contract Documents. 34. As such, and per the explicit terms of the Contract, Plaintiff in entitled to $250.00 per day from the agreed upon day of substantial completion to the day the apartment was tendered substantially completed which totals approximately $48,750.00. 35. Further Plaintiff expended additional living expenses for three months while waiting for Defendant to substantially complete the premises. 36. Wherefore Defendant is liable to Plaintiff, as consequential and incidental damages, $48,750.00 plus statutory interest in per diem charges as well as reimbursement of Plaintiff s reasonable alternate living expenses for Defendant s breach of contract and its failure to substantially complete the agreed upon scope of work by the date as set forth in the Contract. AS AND FOR A THIRD CAUSE OF ACTION (For a Declaratory Judgment as Against Defendants) 37. Plaintiff repeats and realleges each of the foregoing allegations thereby incorporating them into this cause of action by reference. 38. Plaintiff was prompt in making any and all progress payments owed to Defendant as per Paragraph 4.1 of the Contract. 6
39. The final payment of $43,755.33 was for the delivery of a substantially complete renovation to the Premises, which the Plaintiff has not received. 40. Instead, Plaintiff is now burdened with the costs associated with the extensive repair work required to fix that for which the Defendant was contracted but failed to complete. 41. Plaintiff is therefore entitled to a Declaratory Judgment declaring that nothing is further owed to Defendant. 42. Wherefore Plaintiff seeks a Declaratory Judgment that it owes nothing further to the defendant. WHEREFORE, Plaintiff Thomas D Agostino, Jr. demands judgment against the above-named Defendant Quinn-Onelli, Inc. d/b/a Unlimited Designs as follows: (a) On the First Cause of Action for breach of contract, a judgment against Defendant in an amount in excess of $100,000.00, the exact amount to be determined at trial; (b) On the Second Cause of Action for breach of Contract seeking consequential and incidental damages, a Judgment against Defendant in an amount to include $48,750.00 in liquidated damages plus statutory interest as well as reasonable living expense the exact amount to be determined at trial; (c) On the Third Cause of Action against Defendant a Judgment declaring that no further monies are owed to Defendant under the terms of the Contract; and 7
(d) For the costs and disbursements of this action, together with such other and Dated: New York, New York February 11, 2015 further relief as this Court may deem just and proper. CARDENAS LAW OFFICE Attorney for the Plaintiff By: J. R. Cardenas J. ROBERTO CARDENAS 119 W. 57 th Street, Suite 1217 New York, New York 10019 T: (212) 977-7095 F: (212) 977-7085 roberto@jrc-esq.com 8
ATTORNEY'S VERIFICATION STATE OF NEW YORK ) ) SS.: COUNTY OF NEW YORK ) J. Roberto Cardenas under penalties of perjury, affirms that he is the attorney for Plaintiff in this action and that the foregoing complaint is true to his own knowledge, except as to matters therein stated to be alleged on information and belief and as to those matters he believes them to be true. The grounds of such belief as to all matters not stated upon his knowledge are correspondence and other writings furnished to him by the Plaintiff. This verification is made by Plaintiff s counsel and not Plaintiff because the Plaintiff is not within the county where deponent maintains his office. Dated: February 11, 2015 New York, New York J. R. Cardenas J. ROBERTO CARDENAS 9