Preview
FILED: CAYUGA COUNTY CLERK 1070272023 04:24 PM INDEX NO. E2023-0656
NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 10/02/2023
EXHIBIT 1
INDEX NO. E2023-0656
NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 06/08/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF CAYUGA
--
L&W SUPPLY CORPORATION, Index No.
Plaintiff, Date Purchased:
v SUMMONS
CONTINUUM RENEWABLES LLC, JOSEPH
ADEIGBO, CHRISTA CONSTRUCTION, LLC,
and ENDURANCE ASSURANCE CORPORATION,
Defendants.
pene nen nee
TO THE ABOVE-NAMED DEFENDANTS:
YOU ARE HEREBY SUMMONED to answer the Verified Complaint in the above-
entitled action and to serve a copy of your Verified Answer on the Plaintiff's attorney within
twenty (20) days after the service of this Summons, exclusive of the day of service, or within thirty
(30) days after service is complete if this Summons is not personally delivered to you within the
State of New York. In case of your failure to appear or answer, judgment will be taken against
you by default for the relief demanded in the Verified Complaint.
The county of Cayuga is designated as the place of trial. Venue is proper pursuant to CPLR
§ 503 because the County of Cayuga is where a substantial part of the events or omissions giving
rise to the claims set forth in the Verified Complaint occurred. Venue is also proper pursuant to
CPLR § 507 based on the location of the real property which is the subject of this action.
Dated: New York, New York LAW OFFICES OF SCOTT H.
August 10, 2023 BERNSTEIN LLC
By:/s/ Scott H. Bernstein
Scott H. Bernstein
14 Penn Plaza
225 West 34" Street
Floor 9 — PMB#: 9020
New York, New York 10122
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Telephone Number: (862) 245-2667
scott@scottbernsteinlaw.com
Attorneys for Plaintiff L&W Supply
Corporation
Defendants’ Addresses:
Continuum Renewables LLC
c/o New York Department of State
One Commerce Plaza
99 Washington Avenue
Albany, New York 12231
Mr. Joseph Adeigbo
331 Maple Ave
Selkirk, New York 12158-1715
Christa Construction, LLC
c/o New York Department of State
One Commerce Plaza
99 Washington Avenue
Albany, New York 12231
Endurance Assurance Corporation
c/o New York State Department of Financial Services
Corporate Affairs Unit
One Commerce Plaza, 20th Floor
Albany, New York 12257
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SUPREME COURT OF THE STATE OF NEW YORK.
COUNTY OF CAYUGA
panne enn n ene nee nee eee eee een!
L&W SUPPLY CORPORATION, Index No.
Plaintiff,
Vv, VERIFIED COMPLAINT
CONTINUUM RENEWABLES LLC, JOSEPH
ADEIGBO, CHRISTA CONSTRUCTION, LLC,
and ENDURANCE ASSURANCE CORPORATION,
Defendants.
panne enn n ene nee nee eee eee een!
Plaintiff L&W Supply Corporation (the “Plaintiff’), by and through its attorneys the Law
Offices of Scott H. Bernstein LLC, as and for its Verified Complaint (the “Complaint”) against
defendants Continuum Renewables LLC, Joseph Adeigbo, Christa Construction, LLC, and
Endurance Assurance Corporation (collectively, the “Defendants”), states as follows:
PARTIES, JURISDICTION AND VENUE
1 The Plaintiff is a foreign corporation, duly organized and existing under the laws
of the State of Delaware, authorized to do business within the State of New York, and has branches
located throughout the United States of America, including branches located within the State of
New York. The Plaintiff is engaged in the business of selling roofing, siding, windows and other
select exterior and interior building products.
2 Upon information and belief, defendant Continuum Renewables LLC
(“Continuum”) is a domestic limited liability company, authorized to do business within the State
of New York, with a principal place of business located at 19 Runway Ave, Latham, New York
12110-1557.
3 Defendant Joseph Adeigbo is the owner of defendant Continuum.
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4. Upon information and belief, defendant Joseph Adeigbo maintains a residence at
331 Maple Ave, Selkirk, New York 12158-1715.
5 Upon information and belief, defendant Christa Construction, LLC (“Christa”) is a
domestic limited liability company, authorized to do business within the State of New York, with
a principal place of business located at 64 Commercial Street, Suite 401, Rochester, New York
14614-1048.
6. Upon information and belief, defendant Endurance Assurance Corporation
(“Endurance”) is a foreign corporation, duly organized and existing under the laws of the State of
Delaware, and is authorized to do business within the State of New York.
7
Venue is proper in the County of Cayuga pursuant to CPLR § 503 because the
County of Cayuga is where a substantial part of the events or omissions giving rise to the causes
of action in this Complaint occurred. Venue is also proper pursuant to CPLR § 507 based on the
location of the Premises (defined below) that is the subject of this Complaint.
8 The New York State Supreme Court, County of Cayuga, has personal jurisdiction
over the Defendants, pursuant to CPLR §§ 301 and 302, because each of the Defendants has a
principal place of business or place of residence located within the State of New York and/or each
of the Defendants is transacting business within the State of New York.
FACTUAL ALLEGATIONS
9 On or about October 10, 2022, defendant Continuum opened a credit account with
the Plaintiff by submitting a Credit Application, agreeing to the Plaintiff's Credit Agreement, and
agreeing to the Plaintiff's Purchase Agreement Terms and Conditions of Sale (together with the
Credit Application and the Credit Agreement, the “Agreement”). A true and correct, but redacted,
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copy of the Agreement is attached hereto as Exhibit A and a clean, more legible copy of the form
utilized is attached hereto as Exhibit B.
10. Section 3 of the Credit Application (the “Personal Guaranty”), entitled “YOUR
PERSONAL GUARANTY,” states as follows:
Continuing Guaranty
I (we) the undersigned understand that the information furnished you is for
the purpose of obtaining credit from your company, that I am (we are) authorized,
in my (our) capacity, to bind my (our) company accordingly. I (we) the
undersigned, hereinafter referred to as guarantors, do jointly, severally, and
unconditionally guarantee and promise to promptly pay when due any and all
indebtedness of Buyer to L&W Supply, together with any late payment charge that
may accrue thereon, regardless of how such indebtedness is incurred whether such
indebtedness is direct or indirect, absolute or contingent, due or to become due, or
exists now or arises hereafter. In addition, the Guarantor(s) agree to pay all costs
of collection, legal expenses and attorney’s fees paid or incurred by L&W Supply
in the collection of Buyer’s indebtedness and in enforcing this Continuing
Guaranty. The foregoing indebtedness, principal, interest, costs, expenses and fees
are hereinafter called the “Indebtedness.” Each undersigned guarantor agrees to be
bound by L&W Supply’s Terms and Conditions of Continuing Guaranty.
Each undersigned personal guarantor, recognizing that his or her individual
credit history may be a necessary factor in the evaluation of this Continuing
Guaranty, hereby consents for and authorizes L&W Supply to obtain and use
consumer credit reports for each undersigned, from time to time as may be needed
to evaluate the credit of Buyer and/or undersigned.
11. By signing section 4 of the Credit Application, entitled “GUARANTORS SIGN
HERE,” defendant Joseph Adeigbo personally guaranteed the payment of the building materials
which defendant Continuum purchased from the Plaintiff on credit, as well as the payment of all
sums, including but not limited to late payment charges and attorneys’ fees and costs, to become
due by defendant Continuum to the Plaintiff under the Credit Agreement. See Exhibit A hereto
at Sections 3 & 4 of the Credit Application; see also Exhibit B hereto at the Terms and Conditions
of Continuing Guaranty.
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12. In addition, by signing section 4 of the Credit Application, entitled
“GUARANTORS SIGN HERE,” defendant Joseph Adeigbo agreed to pay all costs of collection,
legal expenses and attorney’s fees paid or incurred by the Plaintiff when enforcing the Personal
Guaranty given by defendant Joseph Adeigbo to the Plaintiff. See Exhibit A hereto at Sections 3
& 4 of the Credit Application; see also Exhibit B hereto at the Terms and Conditions of Continuing
Guaranty.
13. Pursuant to Section | of the General Terms and Conditions of the Credit
Agreement, defendant Continuum agreed to pay each invoice in full in accordance with the terms
of the invoice and to pay monthly late payment charges at the rate of one and ahalf percent (1.5%)
per month on any amounts extended by the Plaintiff as credit and that were not paid in a timely
manner,
14. Pursuant to Section 2 of the General Terms and Conditions of the Credit
Agreement, defendant Continuum agreed to pay the Plaintiff's costs of collection, including
attorneys’ fees and costs incurred by the Plaintiff.
15. Defendant Continuum requested that the Plaintiff furnish certain building materials
and construction supplies to defendant Continuum for use in or on a project involving the
construction of an apartment building known commonly (or to be) known as DePaul Port Byron
Apartments (the “DePaul Port Bryon Project”).
16. At the request of defendant Continuum, the Plaintiff sold and provided defendant
Continuum with the building materials of the kinds and quantities ordered by defendant Continuum
for use in or on the DePaul Port Byron Project.
17. Defendant Continuum and/or its designees accepted the building materials ordered
on credit from the Plaintiff and neither rejected the building materials nor notified the Plaintiff of
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any disputes about the quality of the building materials before the filing of this Complaint in the
Court.
18. After each sale of the building materials provided by the Plaintiff to defendant
Continuum on account, the Plaintiff issued an invoice to defendant Continuum setting forth the
amount due for the building materials in accordance with the Terms and Conditions set forth in
the Agreement. See composite Exhibit C hereto, which consists of true and correct, but redacted,
copies of the unpaid invoices (collectively, the “Unpaid Invoices”) for building materials and late
payment charges issued by the Plaintiff to defendant Continuum with respect to the DePaul Port
Bryon Project.
19. Attached hereto as Exhibit D is a true and correct, but redacted, copy of L&W’s
Statement dated May 31, 2023 (the “Statement of Account”) that summarizes the Unpaid Invoices
that are collectively attached hereto as Exhibit C and sets forth an unpaid balance, as of May 31,
2023, in the sum of $220,098.60 owed by defendant Continuum to the Plaintiff, inclusive of late
payment charges in the sum of $9,718.22 that were incurred through and including May 31, 2023.
20. Defendant Continuum has failed and continues to fail to pay the monies due and
owing to the Plaintiff under the Unpaid Invoices for building materials sold by the Plaintiff to
defendant Continuum with respect to the DePaul Port Bryon Project.
21. Defendant Continuum has failed and continues to fail to pay the monies due and
owing to the Plaintiff under the Unpaid Invoices for late payment charges incurred in connection
with the DePaul Port Bryon Project.
22. Defendant Continuum retained the Unpaid Invoices, which are collectively
attached hereto as composite Exhibit C, without objection or dispute within a time period
reasonable under the circumstances.
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23. The Plaintiff made a demand upon defendant Continuum for payment in full of the
amounts due and owing under the Credit Agreement and the Unpaid Invoices that are collectively
attached hereto as composite Exhibit C.
24. Notwithstanding the Plaintiff's demand for payment from defendant Continuum of
the amounts that are due and owing under the Credit Agreement and the Unpaid Invoices,
defendant Continuum has failed and refused and continues to fail and refuse to make payment of
the amounts that are due and owing to the Plaintiff under the Credit Agreement and the Unpaid
Invoices.
25. Defendant Continuum has defaulted under the Credit Agreement with respect to the
amounts that are due and owing under the Credit Agreement and the Unpaid Invoices and, as a
result, defendant Joseph Adeigbo is required to fulfill his obligations under his Personal Guaranty
given to the Plaintiff.
26. The Plaintiff has made a demand upon defendants Continuum and Joseph Adeigbo
for payment in full of the amounts due and owing under the Credit Agreement and the Personal
Guaranty.
27. Notwithstanding the Plaintiffs demand, defendants Continuum and Joseph
Adeigbo have failed and continue to fail to make payment of the amounts set forth in the Unpaid
Invoices that are attached hereto as Exhibit C and summarized on the Statement of Account that
is attached hereto as Exhibit D.
AS AND FOR A FIRST CAUSE OF ACTION
(Breach of Contract v. Defendant Continuum with Respect to the Credit Agreement)
28. The Plaintiff repeats, realleges and incorporates by reference the allegations
contained in paragraphs | through 27 of this Complaint as if fully set forth at length herein.
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29. At all times, the Plaintiff performed its obligations to defendant Continuum under
the Credit Agreement and fulfilled all conditions precedent to payment under the Credit
Agreement.
30. At all times, defendant Continuum was responsible for payment of the Plaintiff's
invoices resulting from the Plaintiffs sale of building materials to defendant Continuum under the
Credit Agreement.
31. By refusing and failing to pay for the building materials provided by the Plaintiff,
defendant Continuum has breached the Credit Agreement between the Plaintiff and defendant
Continuum.
32. As a result of the foregoing, the Plaintiff has suffered damages in an amount no less
than $223,254.32 (inclusive of late payment charges incurred through and including June 30,
2023), plus prejudgment interest at the rate of 1.5% per month on and from July 1, 2023, and post-
judgment interest at the maximum rate allowable by law, and is entitled to an award of attorneys’
fees, costs, and disbursements incurred in this action against defendant Continuum.
AS AND FOR A SECOND CAUSE OF ACTION
(Breach of Contract v. Defendant Joseph Adeigbo with Respect to the Personal Guaranty)
33. The Plaintiff repeats, realleges and incorporates by reference the allegations
contained in paragraphs 1 through 32 of this Complaint as if fully set forth at length herein.
34, Defendant Continuum has defaulted under the Credit Agreement with the Plaintiff
and, as a result, defendant Joseph Adeigbo is now obligated to fulfill his obligations to the Plaintiff
pursuant to his Personal Guaranty.
35. The Plaintiff has demanded payment from defendant Joseph Adeigbo under his
Personal Guaranty. However, defendant Joseph Adeigbo has not made a single payment to
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Plaintiff
on account of the amounts due and owing by defendant Continuum to the Plaintiff under
the Credit Agreement.
36. As a result of the foregoing, the Plaintiff has suffered damages in an amount no less
than $223,254.32 (inclusive of late payment charges incurred through and including June 30,
2023), plus prejudgment interest at the rate of 1.5% per month on and from July 1, 2023, and post-
judgment interest at the maximum rate allowable by law, and is entitled to an award of attorneys’
fees, costs, and disbursements incurred in this action against Joseph Adeigbo.
AS AND FOR A THIRD CAUSE OF ACTION
(Unjust Enrichment v. Defendant Continuum — In the Alternative)
37. The Plaintiff repeats, realleges and incorporates by reference the allegations
contained in paragraphs 1| through 36 of this Complaint as if fully set forth at length herein.
38. As a result of the building materials provided by the Plaintiff
at the special instance
and request of defendant Continuum, defendant Continuum enjoyed the exclusive use and benefit
of the building materials provided by the Plaintiffto defendant Continuum for its use in or on the
DePaul Port Byron Project.
39. Under the circumstances, it would be inequitable for defendant Continuum to retain
the substantial benefit of the building materials provided without having to pay for the building
materials provided by the Plaintiff and, consequently, defendant Continuum has been unjustly
enriched at the expense of the Plaintiff.
40. As a result of the foregoing, the Plaintiff has suffered damages in an amount no less
than $210,380.38, plus prejudgment and post-judgment interest at the maximum rate allowable by
law, and is entitled to an award of costs and disbursements incurred in this action against defendant
Continuum.
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AS AND FOR A FOURTH CAUSE OF ACTION
(Account Stated v. Defendant Continuum — In the Alternative)
Al. The Plaintiff repeats, realleges and incorporates by reference the allegations
contained in paragraphs 1 through 40 of this Complaint as if fully set forth at length herein.
42. The Plaintiff's Unpaid Invoices, which are collectively attached hereto as
composite Exhibit C, were delivered to and accepted by defendant Continuum.
43. The Plaintiff's Unpaid Invoices, which are collectively attached hereto as
composite Exhibit C, were retained by defendant Continuum without objection or dispute within
a period of time reasonable under the circumstances.
44. The Plaintiff's Unpaid Invoices, which are collectively attached hereto as Exhibit
C, constitute an account stated.
45. As a result of the foregoing, the Plaintiff has suffered damages in an amount no less
than $223,254.32 (inclusive of late payment charges incurred through and including June 30,
2023), plus prejudgment interest at the rate of 1.5% per month on and from July 1, 2023 and post-
judgment interest at the maximum rate allowable by law, and is entitled to an award of attorneys’
fees, costs, and disbursements incurred in this action against defendant Continuum.
AS AND FOR A FIFTH CAUSE OF ACTION
(Quantum Meruit v. Defendant Continuum — In the Alternative)
46. The Plaintiff repeats, realleges and incorporates by reference the allegations
contained in paragraphs 1 through 45 of this Complaint as if fully set forth at length herein.
47. The Plaintiff, in good faith, provided defendant Continuum with the unpaid for
building materials that are specifically identified in detail on the Unpaid Invoices that attached
hereto as composite Exhi it C and summarized on the Statement of Account that is attached hereto
as Exhibit D.
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48. Defendant Continuum accepted the unpaid for building materials provided by the
Plaintiff in connection with the DePaul Port Byron Project.
49, The Plaintiff had an expectation of compensation when providing the unpaid for
building materials to defendant Continuum in connection with the DePaul Port Bryon Project.
50. The sum of the reasonable value of the unpaid for building materials and
construction supplies provided in connection with the DePaul Port Bryon Project by the Plaintiff
to defendant Continuum is $210,380.38.
S51. As a result of the foregoing, the Plaintiff has suffered damages in an amount no less
than $210,380.38, plus prejudgment and post-judgment interest at the maximum rate allowed by
law, and is entitled to an award of costs and disbursements incurred in this action against defendant
Continuum.
AS AND FOR A SIXTH CAUSE OF ACTION
(Action for the Price Under Uniform Commercial Code
v. Defendant Continuum — In the Alternative)
§2. The Plaintiff repeats, realleges and incorporates by reference the allegations
contained in paragraphs | through 51 of this Complaint as if fully set forth at length herein.
53. Defendant Continuum ordered certain building materials on credit from the
Plaintiff and the Plaintiff provided the ordered building materials to defendant Continuum.
54. Defendant Continuum accepted the delivery of the building materials ordered on
credit from the Plaintiff.
55. Defendant Continuum never notified the Plaintiff that it was rejecting the building
materials ordered on credit from the Plaintiff.
56. Defendant Continuum never notified the Plaintiff that it was revoking its
acceptance of the building materials ordered on credit from the Plaintiff.
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57. As a result of the foregoing, the Plaintiff has suffered damages in an amount no less
than $223,254.32 (inclusive of late payment charges incurred through and including June 30,
2023), plus prejudgment interest at the rate of 1.5% per month on and from July 1, 2023, and post-
judgment interest at the maximum rate allowable by law, and is entitled to an award of attorneys’
fees, costs, and disbursements incurred in this action against defendant Continuum.
AS AND FOR A SEVENTH CAUSE OF ACTION
(Breach of Contract v. Defendants Christa and Continuum)
58. The Plaintiff repeats, realleges and incorporates by reference the allegations
contained in paragraphs | through 57 of this Complaint as if fully set forth at length herein.
59. On or about April 18, 2023, Christa, as general contractor, Continuum, as
subcontractor, and the Plaintiff entered into a Joint Check Agreement (the “Joint Check
Agreement”) with respect to building materials furnished by the Plaintiff for the DePaul Port
Byron Project.
60. Pursuant to the Joint Check Agreement, defendant Christa agreed, among other
things, to pay defendant Continuum and the Plaintiff in the form of a joint check for all building
materials that are set forth on approved AIA payment applications from defendant Continuum and
that such payment would be made within fourteen (14) days after the respective dates of approval
of defendant Continuum’s AIA payment applications.
61. After the execution of the Joint Check Agreement on or about April 18, 2023, the
Plaintiff fulfilled its conditions precedent to payment under the Joint Check Agreement.
62. After the execution of the Joint Check Agreement on or about April 18, 2023, the
Plaintiff never received a payment for the building materials it provided to defendant Continuum
for its use on or in the DePaul Port Byron Project.
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63. Upon information and belief, defendant Christa made payments to defendant
Continuum in violation of the Joint Check Agreement.
64. As a result of the foregoing, the Plaintiff has suffered damages in an amount to be
determined at trial, plus prejudgment and post-judgment interest at the maximum rate allowed by
law, and is entitled to an award of costs and disbursements incurred in this action against
defendants Christa and Continuum.
AS AND FOR AN EIGHTH CAUSE OF ACTION
(Foreclosure of the Plaintiff's Mechanic’s Lien v. the Defendants)
65. The Plaintiff repeats, realleges and incorporates by reference the allegations
contained in paragraphs | through 64 of this Complaint as if fully set forth at length herein.
66. Defendant Continuum served as a subcontractor, to defendant Christa, the general
contractor for the DePaul Port Bryon Project involving the construction of an apartment building
at the premises (the “Premises”) commonly known by the street address of 27 Church Street,
Village of Port Byron, County of Cayuga, State of New York, identified as Tax Parcel No. 81.15-
2-57.21 on the Tax Map of the Village of Port Byron, and described in more particularity on the
Schedule A that is attached as Exhibit 2 to the Plaintiff's Notice of Mechanic’s Lien Under Lien
Law (the “Plaintiff's Lien”). Attached hereto as Exhibit E is a true and correct copy of the
Plaintiff's Lien.
67. The Plaintiff provided building materials to the DePaul Port Bryon Project in
accordance with the terms and conditions of the Plaintiffs Credit Agreement with defendant
Continuum for which the principal amount of at least $210,380.38 remains unpaid.
68. On or about July 10, 2023, and within eight months of the last day that the Plaintiff
provided building materials to the DePaul Port Bryon Project, the Plaintiff duly filed the Plaintiff's
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Lien with the Office of the Clerk of the County of Cayuga, the same county in which the Premises
is located, and duly served the Plaintiffs Lien in accordance with the requirements of the New
York Lien Law.
69. The Plaintiff's Lien is in writing, verified by the Plaintiff and/or its authorized
agent, as the Lienor, and states the name and residence of the Lienor, the name of the entity with
which the Plaintiff contracted in connection with the improvement at the Premises, the name of
the owner of the real property, the amount claimed to be due, a description of the real property
upon which the labor, materials, equipment or services were furnished, the kind of labor, materials,
equipment or services furnished, and the first and last dates that the labor, materials, equipment or
services were furnished.
70. On July 18, 2023, Christa, as Principal, and Endurance, as Surety, executed a lien
discharge bond numbered EACX4031557, in the penal sum of $245,579.75, conditioned for
payment of any judgment which might be rendered in any action for the enforcement of the
Plaintiffs Lien (the “L&W Lien Discharge Bond”). Attached hereto as Exhibit F is a true and
correct copy of the L&W Lien Discharge Bond.
71. On or about July 20, 2023, the L&W Lien Discharge Bond was filed with the Clerk
of the County of Cayuga, thereby cancelling and discharging the said Plaintiffs Lien as against
the Premises.
72. Pursuant to the New York Lien Law, the L&W Lien Discharge Bond now serves
as substitute security for the Plaintiffs Lien which had been placed against the Premises by the
Plaintiff.
73. On or about August 7, 2023, defendant Continuum filed a Notice of Mechanic’s
Lien Under Lien Law in the amount of $546,030.97 against the Premises for labor, material,
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equipment and/or services furnished to the DePaul Port Bryon Project. Attached hereto as Exhibit
G is a true and correct copy of the Notice of Mechanic’s Lien Under Lien Law filed by defendant
Continuum.
74. The Notice of Mechanic’s Lien Under Lien Law filed by defendant Continuum is
subordinate to the Plaintiff's Lien.
75. Upon information and belief, no persons other than the Plaintiff and the defendants
in this action have or claim any interest or lien in the Premises.
76. The building materials furnished by the Plaintiff
at the Premises and to the DePaul
Port Bryon Project were furnished with the knowledge and consent of defendant Continuum,
defendant Christa, as the general contractor for the DePaul Port Bryon Project, and the owners of
the Premises and the DePaul Port Bryon Project.
77. Neither the Plaintiff’s Lien, nor the claim upon which it is based, have been paid,
waived, satisfied or canceled, or discharged (except by discharge bond described herein), and no
action or proceeding, other than the one described in this Complaint, has been brought to foreclose
or enforce the Plaintiff's Lien or claim described herein.
78. Upon information and belief, at the time the Plaintiffs Lien was filed, there was an
amount due and owing from defendant Christa, as general contractor for the DePaul Port Bryon
Project, to defendant Christa in the amount of at least $223,254.32.
79. By reason of the foregoing, the Plaintiff, by filing and causing the docketing of the
Plaintiff's Lien, acquired a good and valid lien upon the Premises to the extent of $223,254.32,
together with interest thereon.
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80. As a result of the foregoing, the Plaintiff is entitled to foreclosure on the Plaintiff's
Lien and to recover judgment against defendant Christa, as Principal, and defendant Endurance,
as Surety, jointly and severally, in an amount of at least $223,254.32, plus interest thereon.
AS AND FOR A NINTH CAUSE OF ACTION
(Diversion of Trust Funds v. Defendants Continuum and Joseph Adeigbo)
81. The Plaintiff repeats, realleges and incorporates by reference the allegations
contained in paragraphs 1 through 80 of this Complaint as if fully set forth at length herein.
82. Upon information and belief, defendant Continuum has received payments from
defendant Christa or from the owners of the DePaul Port Bryon Project on account of its agreement
with defendant Christa for the DePaul Port Bryon Project in excess of the monies owed by
defendant Continuum to the Plaintiff.
83. The funds received by defendant Continuum on the DePaul Port Bryon Project
constitute trust funds (the “Trust Funds”) pursuant to Article 3-A of the Lien Law of the State of
New York for the benefit of and to be applied to the payment of Plaintiff who has furnished
building materials in connection with the work at the DePaul Port Bryon Project.
84. Defendants Continuum and Joseph Adeigbo had knowledge of the existence of the
Plaintiffs claim for monies due from defendant Continuum.
85. Upon information and belief, defendant Continuum has diverted some of the Trust
funds for non-trust purposes rather than the payment of the Plaintiff who has furnished building
materials in connection with the work at the DePaul Port Bryon Project.
86. Upon information and belief, defendant Joseph Adeigbo has diverted some of the
Trust Funds for non-trust purposes rather than the payment of the Plaintiff who has furnished
materials in connection with the work at the DePaul Port Bryon Project.
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87. By reason of the foregoing, defendants Continuum and Joseph Adeigbo are
personally liable to the Plaintiff for Trust Fund monies diverted by them to the extent that Plaintiff
has not been paid in full.
88. By reason of the foregoing, the Plaintiff has been damaged by defendants
Continuum and Joseph Adeigbo in an amount not less than $223,254.32, plus interest, no part of
which has been paid although duly demanded.
89. This action is brought by the Plaintiff, pursuant to Article 3-A of the Lien Law of
the State of New York on behalf of itself individually, and on behalf of all other persons or entities
who are trust fund claimants by reason of labor or materials furnished to defendant Continuum for
the DePaul Port Bryon Project and who have not been paid in full.
90. The Plaintiff seeks a determination and allocation of the respective interests of the
Plaintiff and such other persons and entities, if any, in and to the Trust Funds in the hands of
defendants Continuum and Joseph Adeigbo, or as defendants Continuum and Joseph Adeigbo may
be liable for.
91. The Lien Law of the State of New York provides that any trustee of an Article 3-A
trust, and any officer, director, or agent of such trustee, who applies or consents to the application
of trust funds received by him or her for any purposes other than the trust purpose of that trust is
guilty of larceny and is punishable as provided in the penal law.
92. Upon information and belief, because of the egregious conduct of defendants
Continuum and Joseph Adeigbo in diverting trust monies in blatant violation of the Lien Law of
the State of New York, accompanied by malice or reckless or willful disregard of the Plaintiff's
rights, the Plaintiff is entitled to recovery of attorneys’ fees and exemplary and punitive damages
against defendants Continuum and Joseph Adeigbo.
16
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INDEX NO. E2023-0656
NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 06/08/2023
93. The actions of defendants Continuum and Joseph Adeigbo as alleged above
constitute or are part ofa deceptive and wrongful scheme and pattern affecting the public welfare
and legal rights.
94. One year has not elapsed since the completion of the DePaul Port Bryon Project,
the improvement upon which the Plaintiff's claim under Article 3-A of the Lien Law of the State
of New York arose.
95. The Plaintiff has no adequate remedy at law.
DEMANDS FOR RELIEF
WHEREFORE, plaintiff L&W Supply Corporation respectfully requests entry of a
judgment granting relief against defendants Continuum Renewables LLC, Joseph Adeigbo,
Christa Construction, LLC, and Endurance Assurance Corporation, as follows:
a, on its First Cause of Action for breach of contract against defendant Continuum
Renewables LLC, awarding the Plaintiff an amount to be determined at trial, but in no event less
than $223,254.32, plus prejudgment interest at the rate of 1.5% per month on and from July 1,
2023 and post-judgment interest at the maximum rate allowable by law, the Plaintiff's costs of
collection, including reasonable attorneys’ fees, disbursements, and expenses, and awarding the
Plaintiff such other and further relief as the Court deems just and proper;
b, on its Second Cause of Action for breach of contract against defendant Joseph
Preview
FILED: CAYUGA COUNTY CLERK 1070272023 04:24 PM INDEX NO. E2023-0656 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 10/02/2023 EXHIBIT 1 INDEX NO. E2023-0656 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 06/08/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF CAYUGA -- L&W SUPPLY CORPORATION, Index No. Plaintiff, Date Purchased: v SUMMONS CONTINUUM RENEWABLES LLC, JOSEPH ADEIGBO, CHRISTA CONSTRUCTION, LLC, and ENDURANCE ASSURANCE CORPORATION, Defendants. pene nen nee TO THE ABOVE-NAMED DEFENDANTS: YOU ARE HEREBY SUMMONED to answer the Verified Complaint in the above- entitled action and to serve a copy of your Verified Answer on the Plaintiff's attorney within twenty (20) days after the service of this Summons, exclusive of the day of service, or within thirty (30) days after service is complete if this Summons is not personally delivered to you within the State of New York. In case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the Verified Complaint. The county of Cayuga is designated as the place of trial. Venue is proper pursuant to CPLR § 503 because the County of Cayuga is where a substantial part of the events or omissions giving rise to the claims set forth in the Verified Complaint occurred. Venue is also proper pursuant to CPLR § 507 based on the location of the real property which is the subject of this action. Dated: New York, New York LAW OFFICES OF SCOTT H. August 10, 2023 BERNSTEIN LLC By:/s/ Scott H. Bernstein Scott H. Bernstein 14 Penn Plaza 225 West 34" Street Floor 9 — PMB#: 9020 New York, New York 10122 1 of 24 INDEX NO. E2023-0656 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 06/08/2023 Telephone Number: (862) 245-2667 scott@scottbernsteinlaw.com Attorneys for Plaintiff L&W Supply Corporation Defendants’ Addresses: Continuum Renewables LLC c/o New York Department of State One Commerce Plaza 99 Washington Avenue Albany, New York 12231 Mr. Joseph Adeigbo 331 Maple Ave Selkirk, New York 12158-1715 Christa Construction, LLC c/o New York Department of State One Commerce Plaza 99 Washington Avenue Albany, New York 12231 Endurance Assurance Corporation c/o New York State Department of Financial Services Corporate Affairs Unit One Commerce Plaza, 20th Floor Albany, New York 12257 2 of 24 INDEX NO. E2023-0656 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 06/08/2023 SUPREME COURT OF THE STATE OF NEW YORK. COUNTY OF CAYUGA panne enn n ene nee nee eee eee een! L&W SUPPLY CORPORATION, Index No. Plaintiff, Vv, VERIFIED COMPLAINT CONTINUUM RENEWABLES LLC, JOSEPH ADEIGBO, CHRISTA CONSTRUCTION, LLC, and ENDURANCE ASSURANCE CORPORATION, Defendants. panne enn n ene nee nee eee eee een! Plaintiff L&W Supply Corporation (the “Plaintiff’), by and through its attorneys the Law Offices of Scott H. Bernstein LLC, as and for its Verified Complaint (the “Complaint”) against defendants Continuum Renewables LLC, Joseph Adeigbo, Christa Construction, LLC, and Endurance Assurance Corporation (collectively, the “Defendants”), states as follows: PARTIES, JURISDICTION AND VENUE 1 The Plaintiff is a foreign corporation, duly organized and existing under the laws of the State of Delaware, authorized to do business within the State of New York, and has branches located throughout the United States of America, including branches located within the State of New York. The Plaintiff is engaged in the business of selling roofing, siding, windows and other select exterior and interior building products. 2 Upon information and belief, defendant Continuum Renewables LLC (“Continuum”) is a domestic limited liability company, authorized to do business within the State of New York, with a principal place of business located at 19 Runway Ave, Latham, New York 12110-1557. 3 Defendant Joseph Adeigbo is the owner of defendant Continuum. 3 of 24 INDEX NO. E2023-0656 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 06/08/2023 4. Upon information and belief, defendant Joseph Adeigbo maintains a residence at 331 Maple Ave, Selkirk, New York 12158-1715. 5 Upon information and belief, defendant Christa Construction, LLC (“Christa”) is a domestic limited liability company, authorized to do business within the State of New York, with a principal place of business located at 64 Commercial Street, Suite 401, Rochester, New York 14614-1048. 6. Upon information and belief, defendant Endurance Assurance Corporation (“Endurance”) is a foreign corporation, duly organized and existing under the laws of the State of Delaware, and is authorized to do business within the State of New York. 7 Venue is proper in the County of Cayuga pursuant to CPLR § 503 because the County of Cayuga is where a substantial part of the events or omissions giving rise to the causes of action in this Complaint occurred. Venue is also proper pursuant to CPLR § 507 based on the location of the Premises (defined below) that is the subject of this Complaint. 8 The New York State Supreme Court, County of Cayuga, has personal jurisdiction over the Defendants, pursuant to CPLR §§ 301 and 302, because each of the Defendants has a principal place of business or place of residence located within the State of New York and/or each of the Defendants is transacting business within the State of New York. FACTUAL ALLEGATIONS 9 On or about October 10, 2022, defendant Continuum opened a credit account with the Plaintiff by submitting a Credit Application, agreeing to the Plaintiff's Credit Agreement, and agreeing to the Plaintiff's Purchase Agreement Terms and Conditions of Sale (together with the Credit Application and the Credit Agreement, the “Agreement”). A true and correct, but redacted, 4 of 24 INDEX NO. E2023-0656 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 06/08/2023 copy of the Agreement is attached hereto as Exhibit A and a clean, more legible copy of the form utilized is attached hereto as Exhibit B. 10. Section 3 of the Credit Application (the “Personal Guaranty”), entitled “YOUR PERSONAL GUARANTY,” states as follows: Continuing Guaranty I (we) the undersigned understand that the information furnished you is for the purpose of obtaining credit from your company, that I am (we are) authorized, in my (our) capacity, to bind my (our) company accordingly. I (we) the undersigned, hereinafter referred to as guarantors, do jointly, severally, and unconditionally guarantee and promise to promptly pay when due any and all indebtedness of Buyer to L&W Supply, together with any late payment charge that may accrue thereon, regardless of how such indebtedness is incurred whether such indebtedness is direct or indirect, absolute or contingent, due or to become due, or exists now or arises hereafter. In addition, the Guarantor(s) agree to pay all costs of collection, legal expenses and attorney’s fees paid or incurred by L&W Supply in the collection of Buyer’s indebtedness and in enforcing this Continuing Guaranty. The foregoing indebtedness, principal, interest, costs, expenses and fees are hereinafter called the “Indebtedness.” Each undersigned guarantor agrees to be bound by L&W Supply’s Terms and Conditions of Continuing Guaranty. Each undersigned personal guarantor, recognizing that his or her individual credit history may be a necessary factor in the evaluation of this Continuing Guaranty, hereby consents for and authorizes L&W Supply to obtain and use consumer credit reports for each undersigned, from time to time as may be needed to evaluate the credit of Buyer and/or undersigned. 11. By signing section 4 of the Credit Application, entitled “GUARANTORS SIGN HERE,” defendant Joseph Adeigbo personally guaranteed the payment of the building materials which defendant Continuum purchased from the Plaintiff on credit, as well as the payment of all sums, including but not limited to late payment charges and attorneys’ fees and costs, to become due by defendant Continuum to the Plaintiff under the Credit Agreement. See Exhibit A hereto at Sections 3 & 4 of the Credit Application; see also Exhibit B hereto at the Terms and Conditions of Continuing Guaranty. 5 of 24 INDEX NO. E2023-0656 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 06/08/2023 12. In addition, by signing section 4 of the Credit Application, entitled “GUARANTORS SIGN HERE,” defendant Joseph Adeigbo agreed to pay all costs of collection, legal expenses and attorney’s fees paid or incurred by the Plaintiff when enforcing the Personal Guaranty given by defendant Joseph Adeigbo to the Plaintiff. See Exhibit A hereto at Sections 3 & 4 of the Credit Application; see also Exhibit B hereto at the Terms and Conditions of Continuing Guaranty. 13. Pursuant to Section | of the General Terms and Conditions of the Credit Agreement, defendant Continuum agreed to pay each invoice in full in accordance with the terms of the invoice and to pay monthly late payment charges at the rate of one and ahalf percent (1.5%) per month on any amounts extended by the Plaintiff as credit and that were not paid in a timely manner, 14. Pursuant to Section 2 of the General Terms and Conditions of the Credit Agreement, defendant Continuum agreed to pay the Plaintiff's costs of collection, including attorneys’ fees and costs incurred by the Plaintiff. 15. Defendant Continuum requested that the Plaintiff furnish certain building materials and construction supplies to defendant Continuum for use in or on a project involving the construction of an apartment building known commonly (or to be) known as DePaul Port Byron Apartments (the “DePaul Port Bryon Project”). 16. At the request of defendant Continuum, the Plaintiff sold and provided defendant Continuum with the building materials of the kinds and quantities ordered by defendant Continuum for use in or on the DePaul Port Byron Project. 17. Defendant Continuum and/or its designees accepted the building materials ordered on credit from the Plaintiff and neither rejected the building materials nor notified the Plaintiff of 4 6 of 24 INDEX NO. E2023-0656 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 06/08/2023 any disputes about the quality of the building materials before the filing of this Complaint in the Court. 18. After each sale of the building materials provided by the Plaintiff to defendant Continuum on account, the Plaintiff issued an invoice to defendant Continuum setting forth the amount due for the building materials in accordance with the Terms and Conditions set forth in the Agreement. See composite Exhibit C hereto, which consists of true and correct, but redacted, copies of the unpaid invoices (collectively, the “Unpaid Invoices”) for building materials and late payment charges issued by the Plaintiff to defendant Continuum with respect to the DePaul Port Bryon Project. 19. Attached hereto as Exhibit D is a true and correct, but redacted, copy of L&W’s Statement dated May 31, 2023 (the “Statement of Account”) that summarizes the Unpaid Invoices that are collectively attached hereto as Exhibit C and sets forth an unpaid balance, as of May 31, 2023, in the sum of $220,098.60 owed by defendant Continuum to the Plaintiff, inclusive of late payment charges in the sum of $9,718.22 that were incurred through and including May 31, 2023. 20. Defendant Continuum has failed and continues to fail to pay the monies due and owing to the Plaintiff under the Unpaid Invoices for building materials sold by the Plaintiff to defendant Continuum with respect to the DePaul Port Bryon Project. 21. Defendant Continuum has failed and continues to fail to pay the monies due and owing to the Plaintiff under the Unpaid Invoices for late payment charges incurred in connection with the DePaul Port Bryon Project. 22. Defendant Continuum retained the Unpaid Invoices, which are collectively attached hereto as composite Exhibit C, without objection or dispute within a time period reasonable under the circumstances. 7 of 24 INDEX NO. E2023-0656 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 06/08/2023 23. The Plaintiff made a demand upon defendant Continuum for payment in full of the amounts due and owing under the Credit Agreement and the Unpaid Invoices that are collectively attached hereto as composite Exhibit C. 24. Notwithstanding the Plaintiff's demand for payment from defendant Continuum of the amounts that are due and owing under the Credit Agreement and the Unpaid Invoices, defendant Continuum has failed and refused and continues to fail and refuse to make payment of the amounts that are due and owing to the Plaintiff under the Credit Agreement and the Unpaid Invoices. 25. Defendant Continuum has defaulted under the Credit Agreement with respect to the amounts that are due and owing under the Credit Agreement and the Unpaid Invoices and, as a result, defendant Joseph Adeigbo is required to fulfill his obligations under his Personal Guaranty given to the Plaintiff. 26. The Plaintiff has made a demand upon defendants Continuum and Joseph Adeigbo for payment in full of the amounts due and owing under the Credit Agreement and the Personal Guaranty. 27. Notwithstanding the Plaintiffs demand, defendants Continuum and Joseph Adeigbo have failed and continue to fail to make payment of the amounts set forth in the Unpaid Invoices that are attached hereto as Exhibit C and summarized on the Statement of Account that is attached hereto as Exhibit D. AS AND FOR A FIRST CAUSE OF ACTION (Breach of Contract v. Defendant Continuum with Respect to the Credit Agreement) 28. The Plaintiff repeats, realleges and incorporates by reference the allegations contained in paragraphs | through 27 of this Complaint as if fully set forth at length herein. 8 of 24 INDEX NO. E2023-0656 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 06/08/2023 29. At all times, the Plaintiff performed its obligations to defendant Continuum under the Credit Agreement and fulfilled all conditions precedent to payment under the Credit Agreement. 30. At all times, defendant Continuum was responsible for payment of the Plaintiff's invoices resulting from the Plaintiffs sale of building materials to defendant Continuum under the Credit Agreement. 31. By refusing and failing to pay for the building materials provided by the Plaintiff, defendant Continuum has breached the Credit Agreement between the Plaintiff and defendant Continuum. 32. As a result of the foregoing, the Plaintiff has suffered damages in an amount no less than $223,254.32 (inclusive of late payment charges incurred through and including June 30, 2023), plus prejudgment interest at the rate of 1.5% per month on and from July 1, 2023, and post- judgment interest at the maximum rate allowable by law, and is entitled to an award of attorneys’ fees, costs, and disbursements incurred in this action against defendant Continuum. AS AND FOR A SECOND CAUSE OF ACTION (Breach of Contract v. Defendant Joseph Adeigbo with Respect to the Personal Guaranty) 33. The Plaintiff repeats, realleges and incorporates by reference the allegations contained in paragraphs 1 through 32 of this Complaint as if fully set forth at length herein. 34, Defendant Continuum has defaulted under the Credit Agreement with the Plaintiff and, as a result, defendant Joseph Adeigbo is now obligated to fulfill his obligations to the Plaintiff pursuant to his Personal Guaranty. 35. The Plaintiff has demanded payment from defendant Joseph Adeigbo under his Personal Guaranty. However, defendant Joseph Adeigbo has not made a single payment to 9 of 24 INDEX NO. E2023-0656 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 06/08/2023 Plaintiff on account of the amounts due and owing by defendant Continuum to the Plaintiff under the Credit Agreement. 36. As a result of the foregoing, the Plaintiff has suffered damages in an amount no less than $223,254.32 (inclusive of late payment charges incurred through and including June 30, 2023), plus prejudgment interest at the rate of 1.5% per month on and from July 1, 2023, and post- judgment interest at the maximum rate allowable by law, and is entitled to an award of attorneys’ fees, costs, and disbursements incurred in this action against Joseph Adeigbo. AS AND FOR A THIRD CAUSE OF ACTION (Unjust Enrichment v. Defendant Continuum — In the Alternative) 37. The Plaintiff repeats, realleges and incorporates by reference the allegations contained in paragraphs 1| through 36 of this Complaint as if fully set forth at length herein. 38. As a result of the building materials provided by the Plaintiff at the special instance and request of defendant Continuum, defendant Continuum enjoyed the exclusive use and benefit of the building materials provided by the Plaintiffto defendant Continuum for its use in or on the DePaul Port Byron Project. 39. Under the circumstances, it would be inequitable for defendant Continuum to retain the substantial benefit of the building materials provided without having to pay for the building materials provided by the Plaintiff and, consequently, defendant Continuum has been unjustly enriched at the expense of the Plaintiff. 40. As a result of the foregoing, the Plaintiff has suffered damages in an amount no less than $210,380.38, plus prejudgment and post-judgment interest at the maximum rate allowable by law, and is entitled to an award of costs and disbursements incurred in this action against defendant Continuum. 10 of 24 INDEX NO. E2023-0656 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 06/08/2023 AS AND FOR A FOURTH CAUSE OF ACTION (Account Stated v. Defendant Continuum — In the Alternative) Al. The Plaintiff repeats, realleges and incorporates by reference the allegations contained in paragraphs 1 through 40 of this Complaint as if fully set forth at length herein. 42. The Plaintiff's Unpaid Invoices, which are collectively attached hereto as composite Exhibit C, were delivered to and accepted by defendant Continuum. 43. The Plaintiff's Unpaid Invoices, which are collectively attached hereto as composite Exhibit C, were retained by defendant Continuum without objection or dispute within a period of time reasonable under the circumstances. 44. The Plaintiff's Unpaid Invoices, which are collectively attached hereto as Exhibit C, constitute an account stated. 45. As a result of the foregoing, the Plaintiff has suffered damages in an amount no less than $223,254.32 (inclusive of late payment charges incurred through and including June 30, 2023), plus prejudgment interest at the rate of 1.5% per month on and from July 1, 2023 and post- judgment interest at the maximum rate allowable by law, and is entitled to an award of attorneys’ fees, costs, and disbursements incurred in this action against defendant Continuum. AS AND FOR A FIFTH CAUSE OF ACTION (Quantum Meruit v. Defendant Continuum — In the Alternative) 46. The Plaintiff repeats, realleges and incorporates by reference the allegations contained in paragraphs 1 through 45 of this Complaint as if fully set forth at length herein. 47. The Plaintiff, in good faith, provided defendant Continuum with the unpaid for building materials that are specifically identified in detail on the Unpaid Invoices that attached hereto as composite Exhi it C and summarized on the Statement of Account that is attached hereto as Exhibit D. 11 of 24 INDEX NO. E2023-0656 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 06/08/2023 48. Defendant Continuum accepted the unpaid for building materials provided by the Plaintiff in connection with the DePaul Port Byron Project. 49, The Plaintiff had an expectation of compensation when providing the unpaid for building materials to defendant Continuum in connection with the DePaul Port Bryon Project. 50. The sum of the reasonable value of the unpaid for building materials and construction supplies provided in connection with the DePaul Port Bryon Project by the Plaintiff to defendant Continuum is $210,380.38. S51. As a result of the foregoing, the Plaintiff has suffered damages in an amount no less than $210,380.38, plus prejudgment and post-judgment interest at the maximum rate allowed by law, and is entitled to an award of costs and disbursements incurred in this action against defendant Continuum. AS AND FOR A SIXTH CAUSE OF ACTION (Action for the Price Under Uniform Commercial Code v. Defendant Continuum — In the Alternative) §2. The Plaintiff repeats, realleges and incorporates by reference the allegations contained in paragraphs | through 51 of this Complaint as if fully set forth at length herein. 53. Defendant Continuum ordered certain building materials on credit from the Plaintiff and the Plaintiff provided the ordered building materials to defendant Continuum. 54. Defendant Continuum accepted the delivery of the building materials ordered on credit from the Plaintiff. 55. Defendant Continuum never notified the Plaintiff that it was rejecting the building materials ordered on credit from the Plaintiff. 56. Defendant Continuum never notified the Plaintiff that it was revoking its acceptance of the building materials ordered on credit from the Plaintiff. 10 12 of 24 INDEX NO. E2023-0656 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 06/08/2023 57. As a result of the foregoing, the Plaintiff has suffered damages in an amount no less than $223,254.32 (inclusive of late payment charges incurred through and including June 30, 2023), plus prejudgment interest at the rate of 1.5% per month on and from July 1, 2023, and post- judgment interest at the maximum rate allowable by law, and is entitled to an award of attorneys’ fees, costs, and disbursements incurred in this action against defendant Continuum. AS AND FOR A SEVENTH CAUSE OF ACTION (Breach of Contract v. Defendants Christa and Continuum) 58. The Plaintiff repeats, realleges and incorporates by reference the allegations contained in paragraphs | through 57 of this Complaint as if fully set forth at length herein. 59. On or about April 18, 2023, Christa, as general contractor, Continuum, as subcontractor, and the Plaintiff entered into a Joint Check Agreement (the “Joint Check Agreement”) with respect to building materials furnished by the Plaintiff for the DePaul Port Byron Project. 60. Pursuant to the Joint Check Agreement, defendant Christa agreed, among other things, to pay defendant Continuum and the Plaintiff in the form of a joint check for all building materials that are set forth on approved AIA payment applications from defendant Continuum and that such payment would be made within fourteen (14) days after the respective dates of approval of defendant Continuum’s AIA payment applications. 61. After the execution of the Joint Check Agreement on or about April 18, 2023, the Plaintiff fulfilled its conditions precedent to payment under the Joint Check Agreement. 62. After the execution of the Joint Check Agreement on or about April 18, 2023, the Plaintiff never received a payment for the building materials it provided to defendant Continuum for its use on or in the DePaul Port Byron Project. 11 13 of 24 INDEX NO. E2023-0656 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 06/08/2023 63. Upon information and belief, defendant Christa made payments to defendant Continuum in violation of the Joint Check Agreement. 64. As a result of the foregoing, the Plaintiff has suffered damages in an amount to be determined at trial, plus prejudgment and post-judgment interest at the maximum rate allowed by law, and is entitled to an award of costs and disbursements incurred in this action against defendants Christa and Continuum. AS AND FOR AN EIGHTH CAUSE OF ACTION (Foreclosure of the Plaintiff's Mechanic’s Lien v. the Defendants) 65. The Plaintiff repeats, realleges and incorporates by reference the allegations contained in paragraphs | through 64 of this Complaint as if fully set forth at length herein. 66. Defendant Continuum served as a subcontractor, to defendant Christa, the general contractor for the DePaul Port Bryon Project involving the construction of an apartment building at the premises (the “Premises”) commonly known by the street address of 27 Church Street, Village of Port Byron, County of Cayuga, State of New York, identified as Tax Parcel No. 81.15- 2-57.21 on the Tax Map of the Village of Port Byron, and described in more particularity on the Schedule A that is attached as Exhibit 2 to the Plaintiff's Notice of Mechanic’s Lien Under Lien Law (the “Plaintiff's Lien”). Attached hereto as Exhibit E is a true and correct copy of the Plaintiff's Lien. 67. The Plaintiff provided building materials to the DePaul Port Bryon Project in accordance with the terms and conditions of the Plaintiffs Credit Agreement with defendant Continuum for which the principal amount of at least $210,380.38 remains unpaid. 68. On or about July 10, 2023, and within eight months of the last day that the Plaintiff provided building materials to the DePaul Port Bryon Project, the Plaintiff duly filed the Plaintiff's 12 14 of 24 INDEX NO. E2023-0656 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 06/08/2023 Lien with the Office of the Clerk of the County of Cayuga, the same county in which the Premises is located, and duly served the Plaintiffs Lien in accordance with the requirements of the New York Lien Law. 69. The Plaintiff's Lien is in writing, verified by the Plaintiff and/or its authorized agent, as the Lienor, and states the name and residence of the Lienor, the name of the entity with which the Plaintiff contracted in connection with the improvement at the Premises, the name of the owner of the real property, the amount claimed to be due, a description of the real property upon which the labor, materials, equipment or services were furnished, the kind of labor, materials, equipment or services furnished, and the first and last dates that the labor, materials, equipment or services were furnished. 70. On July 18, 2023, Christa, as Principal, and Endurance, as Surety, executed a lien discharge bond numbered EACX4031557, in the penal sum of $245,579.75, conditioned for payment of any judgment which might be rendered in any action for the enforcement of the Plaintiffs Lien (the “L&W Lien Discharge Bond”). Attached hereto as Exhibit F is a true and correct copy of the L&W Lien Discharge Bond. 71. On or about July 20, 2023, the L&W Lien Discharge Bond was filed with the Clerk of the County of Cayuga, thereby cancelling and discharging the said Plaintiffs Lien as against the Premises. 72. Pursuant to the New York Lien Law, the L&W Lien Discharge Bond now serves as substitute security for the Plaintiffs Lien which had been placed against the Premises by the Plaintiff. 73. On or about August 7, 2023, defendant Continuum filed a Notice of Mechanic’s Lien Under Lien Law in the amount of $546,030.97 against the Premises for labor, material, 13 15 of 24 INDEX NO. E2023-0656 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 06/08/2023 equipment and/or services furnished to the DePaul Port Bryon Project. Attached hereto as Exhibit G is a true and correct copy of the Notice of Mechanic’s Lien Under Lien Law filed by defendant Continuum. 74. The Notice of Mechanic’s Lien Under Lien Law filed by defendant Continuum is subordinate to the Plaintiff's Lien. 75. Upon information and belief, no persons other than the Plaintiff and the defendants in this action have or claim any interest or lien in the Premises. 76. The building materials furnished by the Plaintiff at the Premises and to the DePaul Port Bryon Project were furnished with the knowledge and consent of defendant Continuum, defendant Christa, as the general contractor for the DePaul Port Bryon Project, and the owners of the Premises and the DePaul Port Bryon Project. 77. Neither the Plaintiff’s Lien, nor the claim upon which it is based, have been paid, waived, satisfied or canceled, or discharged (except by discharge bond described herein), and no action or proceeding, other than the one described in this Complaint, has been brought to foreclose or enforce the Plaintiff's Lien or claim described herein. 78. Upon information and belief, at the time the Plaintiffs Lien was filed, there was an amount due and owing from defendant Christa, as general contractor for the DePaul Port Bryon Project, to defendant Christa in the amount of at least $223,254.32. 79. By reason of the foregoing, the Plaintiff, by filing and causing the docketing of the Plaintiff's Lien, acquired a good and valid lien upon the Premises to the extent of $223,254.32, together with interest thereon. 14 16 of 24 INDEX NO. E2023-0656 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 06/08/2023 80. As a result of the foregoing, the Plaintiff is entitled to foreclosure on the Plaintiff's Lien and to recover judgment against defendant Christa, as Principal, and defendant Endurance, as Surety, jointly and severally, in an amount of at least $223,254.32, plus interest thereon. AS AND FOR A NINTH CAUSE OF ACTION (Diversion of Trust Funds v. Defendants Continuum and Joseph Adeigbo) 81. The Plaintiff repeats, realleges and incorporates by reference the allegations contained in paragraphs 1 through 80 of this Complaint as if fully set forth at length herein. 82. Upon information and belief, defendant Continuum has received payments from defendant Christa or from the owners of the DePaul Port Bryon Project on account of its agreement with defendant Christa for the DePaul Port Bryon Project in excess of the monies owed by defendant Continuum to the Plaintiff. 83. The funds received by defendant Continuum on the DePaul Port Bryon Project constitute trust funds (the “Trust Funds”) pursuant to Article 3-A of the Lien Law of the State of New York for the benefit of and to be applied to the payment of Plaintiff who has furnished building materials in connection with the work at the DePaul Port Bryon Project. 84. Defendants Continuum and Joseph Adeigbo had knowledge of the existence of the Plaintiffs claim for monies due from defendant Continuum. 85. Upon information and belief, defendant Continuum has diverted some of the Trust funds for non-trust purposes rather than the payment of the Plaintiff who has furnished building materials in connection with the work at the DePaul Port Bryon Project. 86. Upon information and belief, defendant Joseph Adeigbo has diverted some of the Trust Funds for non-trust purposes rather than the payment of the Plaintiff who has furnished materials in connection with the work at the DePaul Port Bryon Project. 15 17 of 24 INDEX NO. E2023-0656 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 06/08/2023 87. By reason of the foregoing, defendants Continuum and Joseph Adeigbo are personally liable to the Plaintiff for Trust Fund monies diverted by them to the extent that Plaintiff has not been paid in full. 88. By reason of the foregoing, the Plaintiff has been damaged by defendants Continuum and Joseph Adeigbo in an amount not less than $223,254.32, plus interest, no part of which has been paid although duly demanded. 89. This action is brought by the Plaintiff, pursuant to Article 3-A of the Lien Law of the State of New York on behalf of itself individually, and on behalf of all other persons or entities who are trust fund claimants by reason of labor or materials furnished to defendant Continuum for the DePaul Port Bryon Project and who have not been paid in full. 90. The Plaintiff seeks a determination and allocation of the respective interests of the Plaintiff and such other persons and entities, if any, in and to the Trust Funds in the hands of defendants Continuum and Joseph Adeigbo, or as defendants Continuum and Joseph Adeigbo may be liable for. 91. The Lien Law of the State of New York provides that any trustee of an Article 3-A trust, and any officer, director, or agent of such trustee, who applies or consents to the application of trust funds received by him or her for any purposes other than the trust purpose of that trust is guilty of larceny and is punishable as provided in the penal law. 92. Upon information and belief, because of the egregious conduct of defendants Continuum and Joseph Adeigbo in diverting trust monies in blatant violation of the Lien Law of the State of New York, accompanied by malice or reckless or willful disregard of the Plaintiff's rights, the Plaintiff is entitled to recovery of attorneys’ fees and exemplary and punitive damages against defendants Continuum and Joseph Adeigbo. 16 18 of 24 INDEX NO. E2023-0656 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 06/08/2023 93. The actions of defendants Continuum and Joseph Adeigbo as alleged above constitute or are part ofa deceptive and wrongful scheme and pattern affecting the public welfare and legal rights. 94. One year has not elapsed since the completion of the DePaul Port Bryon Project, the improvement upon which the Plaintiff's claim under Article 3-A of the Lien Law of the State of New York arose. 95. The Plaintiff has no adequate remedy at law. DEMANDS FOR RELIEF WHEREFORE, plaintiff L&W Supply Corporation respectfully requests entry of a judgment granting relief against defendants Continuum Renewables LLC, Joseph Adeigbo, Christa Construction, LLC, and Endurance Assurance Corporation, as follows: a, on its First Cause of Action for breach of contract against defendant Continuum Renewables LLC, awarding the Plaintiff an amount to be determined at trial, but in no event less than $223,254.32, plus prejudgment interest at the rate of 1.5% per month on and from July 1, 2023 and post-judgment interest at the maximum rate allowable by law, the Plaintiff's costs of collection, including reasonable attorneys’ fees, disbursements, and expenses, and awarding the Plaintiff such other and further relief as the Court deems just and proper; b, on its Second Cause of Action for breach of contract against defendant Joseph