FILED: NEW YORK COUNTY CLERK 03/11/2016 04:20 PM INDEX NO. 654180/2015 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 03/11/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------------------------------------------------------------------x SIBA CONTRACTING CORP. Plaintiff - Against Index#654180/2015 STANTEC INC. A/K/A STANTEC CONSULTING SERVICES, INC. Reply to Counterclaims WESTCHESTER FIRE INSURANCE COMPANY by Westchester Fire Ins. Co. -Against- IFTEKAR HAIDER AND SABUHI ALIKHAN Additional Counterclaim ----------------------------------------------------------------------------x SIBA CONTRACTING CORP, ( SIBA ) in Reply to the allegations of the counterclaims by Westchester Fire Insurance Co. ( WFIC ) alleges as follows: 1. Counterclaims Plaintiff SIBA denies knowledge or information sufficient to form a belief as to each and every allegation alleged in paragraph number 1 2. Counterclaim Plaintiff SIBA admits the allegation alleged in paragraphs number 2, 3 and 4. 3. Counterclaims Plaintiff SIBA denies each and every allegation alleged in paragraph number 5 except admit an Indemnity Agreement was executed annexed to the 4. Counterclaims Plaintiff SIBA denies each and every allegation alleged in paragraph number 6 except admit an Indemnity Agreement was executed annexed to the 5. Counterclaims Plaintiff SIBA denies each and every allegation alleged in paragraph number 7 except admit an Indemnity Agreement was executed annexed to the 6. Counterclaims Plaintiff SIBA denies each and every allegation alleged in paragraph number 8 except admit an Indemnity Agreement was executed annexed to the 7. Counterclaim Plaintiff SIBA admits the allegation alleged in paragraph number 9 that a contract was entered into by SIBA and OPRHP the contents of which speak for itself. 8. Counterclaims Plaintiff SIBA denies each and every allegation alleged in paragraph number 10 except admit a Bonding Agreement was executed annexed to the Answer as Exhibit B, the contents of which speak for itself. 1 1 of 7
9. Counterclaims Plaintiff SIBA denies each and every allegation alleged in paragraph number 11 except admits only that a letter is annexed to the Answer as Exhibit C, the contents of which speak for itself. 10. Counterclaims Plaintiff SIBA denies each and every allegation alleged in paragraph number 12 except admits only that a letter is annexed to the Answer as Exhibit D, the contents of which speak for itself. 11. Counterclaims Plaintiff SIBA denies each and every allegation alleged in paragraph number 13 except admits only a letter is annexed to the Answer as Exhibit E, the contents of which speak for itself. 12. Counterclaims Plaintiff SIBA denies each and every allegation alleged in paragraph number 14 except admits a so called Completion Agreement is annexed to the Answer as Exhibit F, the contents of which speak for itself. 13. Counterclaims Plaintiff SIBA denies each and every allegation alleged in paragraph number 15 except admits a so called Modification to Takeover Agreement with OPRHP is annexed to the Answer as Exhibit G, the contents of which speak for itself. 14. Counterclaims Plaintiff SIBA denies each and every allegation alleged in paragraph number 16. FIRST CAUSE OF ACTION; Specific Performance: Deposit of Collateral Security 15. Counterclaims Plaintiff SIBA denies each and every allegation alleged in paragraph number 18 except admits a so called Collateral Demand is annexed to the Answer as Exhibit H, the contents of which speak for itself. 16. Counterclaims Plaintiff SIBA denies each and every allegation alleged in paragraph number 19. 17. Counterclaims Plaintiff SIBA denies each and every allegation alleged in paragraph number 20 as no legal obligation by them to make payment has yet been proven. OBJECTION IN POINT OF LAW: The First Counterclaim (paragraphs 18-20 ), all contained in the answer of the defendant WFIC are insufficient in law upon the face thereof because in defining indemnify, Black s Law Dictionary refers to a loss suffered because of a third party s or one s own act or default however SIBA did nothing wrong during the entire contract term and OPRHP not a third party; (a) namely that it is defendant Stantec, as alleged in complaint which did something wrong, is being sued by SIBA herein based upon such alleged wrong therefore as a result, Stantec is alleged to be responsible for the resulting claim (b) no proof of opportunity by OPRHP & WFIC to SIBA to cure alleged default by plaintiff SIBA under terms of its construction contract with OPRHP herein occurred to trigger plaintiff s performance bond; and (c) if no opportunity to cure, then as matter of law, default provision in Performance Bond not triggered; and (d) WFIC counterclaims allege speculative anticipated loss, further unproven actual direct damages under terms of Performance Bond on 9/16/15 based upon the terms of the actual contract 2 2 of 7
with SIBA & OPRHP as executed by them in order to trigger claim of collateral damage to WFIC of $433,562, 18. Counterclaims Plaintiff SIBA denies each and every allegation alleged in paragraph number 21. SECOND CAUSE OF ACTION; Breach of Contract: Contractual Indemnity for Losses 19. Counterclaims Plaintiff SIBA denies each and every allegation alleged in paragraph number 23 as no legal obligation by them to make payment has yet been proven except admit a so called Indemnity Agreement was executed annexed to the Answer as Exhibit A, the contents of which speak for itself plus a Bonding Agreement exists annexed to the Answer as Exhibit B, the contents of which speak for itself. 20. Counterclaims Plaintiff SIBA denies each and every allegation alleged in paragraph number 24 as no legal obligation by them to make payment has yet been proven. except admit a so called Indemnity Agreement was executed annexed to the Answer as Exhibit A, the contents of which speak for itself plus a Bonding Agreement exists annexed to the Answer as Exhibit B, the contents of which speak for itself. OBJECTION IN POINT OF LAW The Second Counterclaim (paragraphs 22-27 ), all contained in the answer of the defendant WFIC are insufficient in law upon the face thereof as (a) OPRHP in its contract with SIBA agreed to an Interparty Indemnity whereby, by law WFIC can only bring an indemnification claim for direct damages from breach of the agreement yet is proceeding herein upon a duplicative excessive claim by a new contractor; (b) the use of this approach by WFIC provides duplicative coverage for events of default ( c) WFIC s 2 nd counterclaim is flawed, upon information and belief because the within indemnity claim was brought although (d) Complaint fails to allege specifically in what manner SIBA failed to perform its obligations under the agreements or is in breach of a contractual warranty; further (e) SIBA never provided opportunity to defend itself from a disputed charge of being in default under terms of the contract with OPRHP; and (f) if SIBA not provided with opportunity to defend itself it was not in default with OPRHP, WFIC lacked evidence of a claim of breach of contract to support of alleged losses suffered by OPRHP,WFIC alleged collateral damage to WFIC in sum of $433,562 arising from that OPRHP breach. 21. Counterclaims Plaintiff SIBA denies each and every allegation alleged in paragraphs numbered 25, 26, and 27. 3 3 of 7
THIRD CAUSE OF ACTION; Breach of Contract:Contractual Indemnity for Additional Losses. 22. Counterclaims Plaintiff SIBA denies each and every allegation alleged in paragraph number 29 as no legal obligation by them to make payment has yet been proven except admit a so called Indemnity Agreement executed as annexed to the Answer as Exhibit A, the contents of which speak for itself plus a Bonding Agreement exists annexed to the Answer as Exhibit B, the contents of which speak for itself. OBJECTION IN POINT OF LAW The 3rd Counterclaim (paragraphs 28-31 ), all contained in the answer of the defendant WFIC are insufficient in law upon the face thereof as Complaint fails to allege specifically in what manner SIBA failed to perform its obligations under the agreements or is in breach of a contractual warranty. 23. Counterclaims Plaintiff SIBA denies each and every allegation alleged in paragraph number 30 as no legal obligation by them to make payment has yet been proven. except admit a so called Indemnity Agreement executed annexed to the Answer as Exhibit A, the contents of which speak for itself plus a Bonding Agreement executed annexed to the Answer as Exhibit B, the contents of which speak for itself. 24. Counterclaims Plaintiff SIBA each and every allegation alleged in paragraphs numbered 31 FOURTH CAUSE OF ACTION; Common Law Indemnity against SIBA 25. Counterclaims Plaintiff SIBA each and every allegation alleged in paragraph number 33 as no legal obligation by SIBA to make payment has yet been proven except admit a so called Indemnity Agreement exists annexed to the Answer as Exhibit A, the contents of which speak for itself plus a Bonding Agreement exists annexed to the Answer as Exhibit B, the contents of which speak for itself 26. Counterclaims Plaintiff SIBA each and every allegation alleged in paragraph number 34 as no legal obligation by SIBA to make payment has yet been proven. except admit a so called Indemnity Agreement executed annexed to the Answer as Exhibit A, the contents of which speak for itself plus a Bonding Agreement executed annexed to the Answer as Exhibit B, the contents of which speak for itself. OBJECTION IN POINT OF LAW: The 4 th Counterclaim (paragraphs 32-36 ), all contained in the answer of the defendant WFIC are insufficient in law upon the face thereof as under common law, a buyer is clearly obliged to mitigate any loss for a breach of warranty. There is no such clear obligation for a buyer to mitigate its loss under an indemnity. 27. Counterclaims Plaintiff SIBA each and every allegation alleged in paragraphs numbered 35 and 36. FIFTH CAUSE OF ACTION; Attorney s Fees 28. Counterclaims Plaintiff SIBA each and every allegation alleged in paragraphs numbered 38, 39 and 40. 4 4 of 7
WHEREFORE, plaintiff SIBA demands judgment dismissing the counterclaims of the defendants WFIC, and striking the defenses contained in its answer, with costs, and demands judgment as demanded in the complaint March 11, 2016 Dated: Hawthorne, New York Morrison Law Offices of Westchester PC Attorneys for SIBA & Additional Counterclaim By: /s/ Arthur Morrison Arthur Morrison 11 Skyline Drive Hawthorne, New York 10583 (T) 914-980-7244 (F) 914-59203482 Email lawnyu63@gmail.com To: Jonathan Bondy, Esq., Chiesa, Shahinian & Goantomasi, PC Attorneys for Westchester Fire Ins.Co. 140 Broadway 46 th Floor New York, N.Y. 10005 (T) 212-973-0572 Robyn S. Rubin, Esq. Milber, Makris, Plousadis and Seiden, LLP Attorneys for Stantec Inc. 3 Barker Avenue White Plains, New York 106014 5 5 of 7
VERIFICATION State of New York ) ) ss: County of New York ) IFTEKHAR HAIDER, being duly sworn, deposes and says: I am the President of SIBA CONTRACTING CORP. Plaintiff in the above-entitled action. I have read the foregoing Reply to Counterclaims by WFIC and know the contents thereof. The same are true to my knowledge, except as to matters alleged on information and belief and as to those matter, I believe them to be true. Sworn to before me this 11th day of March, 2016. /s/ Iftekhar Haider IFTEKHAR HAIDER /s/ Arthur Morrison Arthur Morrison Notary Public State of New York Qualified in Westchester County #02MO5029969 Commission Expires 11/20/18 6 6 of 7
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------------------------------------------------------------------x SIBA CONTRACTING CORP. Plaintiff - Against Index#654180/2015 STANTEC INC. A/K/A STANTEC CONSULTING SERVICES, INC. WESTCHESTER FIRE INSURANCE COMPANY -Against- IFTEKAR HAIDER AND SABUHI ALIKHAN Additional Counterclaim ----------------------------------------------------------------------------x PLAINTIFF S REPLY TO COUNTERCLAIMS BY PLAINTIFF SIBA CONTRACTING CORP I certify compliance with 130.l.l (a) Ruling of the Chief Administrator March 11, 2016 Dated: Hawthorne, New York Morrison Law Offices of Westchester PC Attorneys for Attorneys for SIBA & Additional Counterclaim By: /s/ Arthur Morrison Arthur Morrison 11 Skyline Drive Hawthorne, New York 10583 (T) 914-980-7244 (F) 914-59203482 Email lawnyu63@gmail.com 7 7 of 7