Preview
FILED: OSWEGO COUNTY CLERK 03/30/2018 11:15 AM INDEX NO. EFC-2018-0527
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/30/2018
STATE OF NEW YORK
SUPREME COURT COUNTY OF OSWEGO
MICHAEL CLARK INDIVIDUALLY COMPLAINT
AND O/B/O CAROL CLARK
Plaintiffs, Index No.
v. RJI No.
Judge.
WINTER HARBOR LLC,
Defendants.
The Plaintiffs Michael Clark and Carol Clark (hereinafter collectively the
"Plaintiffs"
"Plaintiffs") by their attorneys the Antonucci Law Firm LLP for a complaint against the
Defendants respectfully state as follows:
THE PARTIES
1. The Plaintiffs are individuals with residence in the Nation of Canada.
2. The Defendant is a domestic limited liability company with office and
a place of business in the County of Oswego, State of New York.
3. The Defendant is a regular operator of a marina or similar business that
stores and repairs boats on the shores of Lake Ontario.
FACTUAL BACKGROUND
4. In or around 2011 the Plaintiff Michael Clark tendered a vessel to the
Defendant known as Sunshine a Kantor Yacht VIN No. ZKNM5468G707 (hereinafter
"vessel"
the "vessel") The vessel had been previously stored and repaired by the Defendant.
5. The Defendant undertook to install as designed a complete redesign of the
Fly-bridge including automatic hydraulic mast array to meet vertical clearances for the
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Erie Canal passage south. Various propellers and an isolation transformer were also
tendered by us to Winter Harbor for later pickup.
6. The repairs were paid for in fullby the Plaintiff. Plaintiffhas
performed allof their agreements with the Defendant. Upon information and
belief, allof the agreements in this matter have been between Plaintiff Michael
Clark and the Defendant.
7. The fly-bridge upgrades were inadequate. As a result, leaks occurred
surrounding the fly-bridge mast into the main salon. Despite clear notification of the
deficiencies to Winter Harbor and countless requests, the improvements have never been
properly completed. The propellers and transformer have not been returned either.
8. The Vessel has been substantially damages by the leakage and could
not be sailed. The Vessel is not seaworthy. As a result, the Vessel has remained with
the Defendant.
9. The Plaintiffs have, for years, requested the repairs be properly completed
and the damages addressed so the Vessel might be moved and used. Defendant has
simply failed to respond.
10. The Plaintiffs have demanded inspection and return of the Vessel. The
defendant has not responded or agreed. Instead, recently, the Defendant has claimed
on a lien upon the vessel for storage charges for the periods when the repairs were not
properly coinpleted.
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11. Upon information and belief, the Defendant has exerted a possessory
lien or security interest in the vessel and will not tender the same until the claimed
storage charges are paid; which are not due.
FOR A FIRST CAUSE OF ACTION
BREACH OF FIDUCUIARY DUTY
AND CONVERSION
12. Plaintiff repeats and realleges paragraphs one through eleven above
as if fully set forth herein.
13. Defendant was tendered the vessel as a bailee and also pursuant to
a contract for repair.
14. Defendant has not repaired the vessel as agreed, withheld access and
possession of the vessel from the Plaintiffs and is attempting to sell the same pursuant
to various supposed liens that are without merit.
15. Demand has been made for entry, inspection and tender of the vessel.
The same has been ignored.
16. In addition to the breaches of contract set forth below, the Defendant
has effectively converted the vessel without cause by retaining and sequestering the
same.
17. Further, the Defendant has breached itsfiduciary duty to care for the
vessel as well as preserve and return the vessel to the Plaintiff.
18. The Defendant has done so without any right, title or interest in the
vessel.
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19. As such, the Plaintiff is entitled to return of the vessel along with
actual, compensatory and punitive damages in an amount as proof may show
at trial.
20. In the alternative, the Plaintiff is entitled to damages in the amount
of $1,000,000.00 or as proof may show at trial.
FOR A SECOND CAUSE OF ACTION
DECLARATORY JUDGMENT
21. Plaintiff repeats and realleges paragraphs one through twenty above
as if fully set forth herein.
22 Defendant has filed various liens against the vessel for storage charges
pursuant to the New York State Lien Law and related statutes.
23. The storage for the vessel arose solely due to the Defendant's breach
of contract. Specifically, the failure to repair the vessel rendered itunseaworthy.
Further, the Plaintiff continued to request and await the repairs, which were paid for,
to be properly completed.
24. No contract or agreement existed for allor most of the storage charges
in question. No notice of lien or contract existed with the titledowner to the vessel. The
liens are willfully exaggerated and/or completely without basis. The Defendant has not
satisfied the requirements of either Article 4 or Section 184 of the New
IVew York State Lien
Law.
25. Plaintiff is entitled to a declaratory judgment that they are not indebted
to the Defendant and that the liens are void.
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FOR A THIRD CAUSE OF ACTION
PRIMA FACIA TORT
26. Plaintiff repeats and realleges paragraphs one through twenty-five above
as if fully set forth herein.
27. The acts ofthe Defendant in interfering with the business and property
rights of the Plaintiff constitute a prima facia tort.
28. The Plaintiffhas suffered special damages as a result of the Defendant's
actions.
29. The actions of the Defendant were willful and malicious. The same were
designed to both extort money and conceal its breach of contract.
30. The Plaintiffis entitled to judgment against Defendant in the amount of
SI,000,000.00 or as proofmay show at trialalong with all other actual, compensatory
and punitive damages in this matter.
FOR A FOURTH CAUSE OF ACTION
BREACH OF CONTRACT
31. Plaintiffrepeats and realleges paragraphs one thirty above
as if fully set forth herein.
32. Defendant and Plaintiff had an agreement for certain repairs and
improvements to the vessel.
33. Though duly paid, the Defendant fails to adequately and properly
perform the repairs to the vessel rendering itdefective and not seaworthy.
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34. As a result, the vessel cannot be used, needs further repair, and
and is not seaworthy.
35. The Plaintiffs have lost use of the vessel for years as a result of waiting
for the repairs to be corrected and completed.
36. The Defendant breached itsrepair and work contract with the Plaintiffs.
The Defendant will also not return or allow inspection of the vessel.
37. In addition, the Defendants had a duty of good faith and fair dealing
with respect to the contract.
38. As a result of the breaches, the Plaintiffs have been damaged in
The sum of $1,000,000.00 or as proof may show at trial and should have damage
therefore along with the costs and disbursements of this action, actual and other
compensatory damages and reasonable attorney's fees.
WHEREFORE, the Plaintiff demands judgment:
a. requiring return of the vessel; and/or
b. an adjudication or judgment that the Plaintiffs are not indebted
to the Defendant and, further, that the Defendant has no valid
lien on the vessel; and,
c. judgment in the amount of S1,000,000.00 or as proof may show at trial;
and,
d. actual, compensatory and punitive damages in an amount as proof may
show at trial;and,
e. Such other and further relief as the court finds just and proper including
the costs and disbursements of this action and reasonable attorney's
fees.
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NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/30/2018
Dated: March 23, 2018
Antonucci Law Firm LLP
By:
David P. Antonucci Esq.
Attorney for Plaintiff
Office and P.O. Address
12 Public Square
Watertown, New York 13601
and
Richard K. Champney Esq.
Richard K. Champney P.C.
Attorney for Plaintiff
Office and P.O. Address
4 Market Street, Suite B
Alex.andria
Alexandria Bay New York 13607
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Preview
FILED: OSWEGO COUNTY CLERK 03/30/2018 11:15 AM INDEX NO. EFC-2018-0527 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/30/2018 STATE OF NEW YORK SUPREME COURT COUNTY OF OSWEGO MICHAEL CLARK INDIVIDUALLY COMPLAINT AND O/B/O CAROL CLARK Plaintiffs, Index No. v. RJI No. Judge. WINTER HARBOR LLC, Defendants. The Plaintiffs Michael Clark and Carol Clark (hereinafter collectively the "Plaintiffs" "Plaintiffs") by their attorneys the Antonucci Law Firm LLP for a complaint against the Defendants respectfully state as follows: THE PARTIES 1. The Plaintiffs are individuals with residence in the Nation of Canada. 2. The Defendant is a domestic limited liability company with office and a place of business in the County of Oswego, State of New York. 3. The Defendant is a regular operator of a marina or similar business that stores and repairs boats on the shores of Lake Ontario. FACTUAL BACKGROUND 4. In or around 2011 the Plaintiff Michael Clark tendered a vessel to the Defendant known as Sunshine a Kantor Yacht VIN No. ZKNM5468G707 (hereinafter "vessel" the "vessel") The vessel had been previously stored and repaired by the Defendant. 5. The Defendant undertook to install as designed a complete redesign of the Fly-bridge including automatic hydraulic mast array to meet vertical clearances for the 1 of 7 FILED: OSWEGO COUNTY CLERK 03/30/2018 11:15 AM INDEX NO. EFC-2018-0527 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/30/2018 Erie Canal passage south. Various propellers and an isolation transformer were also tendered by us to Winter Harbor for later pickup. 6. The repairs were paid for in fullby the Plaintiff. Plaintiffhas performed allof their agreements with the Defendant. Upon information and belief, allof the agreements in this matter have been between Plaintiff Michael Clark and the Defendant. 7. The fly-bridge upgrades were inadequate. As a result, leaks occurred surrounding the fly-bridge mast into the main salon. Despite clear notification of the deficiencies to Winter Harbor and countless requests, the improvements have never been properly completed. The propellers and transformer have not been returned either. 8. The Vessel has been substantially damages by the leakage and could not be sailed. The Vessel is not seaworthy. As a result, the Vessel has remained with the Defendant. 9. The Plaintiffs have, for years, requested the repairs be properly completed and the damages addressed so the Vessel might be moved and used. Defendant has simply failed to respond. 10. The Plaintiffs have demanded inspection and return of the Vessel. The defendant has not responded or agreed. Instead, recently, the Defendant has claimed on a lien upon the vessel for storage charges for the periods when the repairs were not properly coinpleted. 2 of 7 FILED: OSWEGO COUNTY CLERK 03/30/2018 11:15 AM INDEX NO. EFC-2018-0527 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/30/2018 11. Upon information and belief, the Defendant has exerted a possessory lien or security interest in the vessel and will not tender the same until the claimed storage charges are paid; which are not due. FOR A FIRST CAUSE OF ACTION BREACH OF FIDUCUIARY DUTY AND CONVERSION 12. Plaintiff repeats and realleges paragraphs one through eleven above as if fully set forth herein. 13. Defendant was tendered the vessel as a bailee and also pursuant to a contract for repair. 14. Defendant has not repaired the vessel as agreed, withheld access and possession of the vessel from the Plaintiffs and is attempting to sell the same pursuant to various supposed liens that are without merit. 15. Demand has been made for entry, inspection and tender of the vessel. The same has been ignored. 16. In addition to the breaches of contract set forth below, the Defendant has effectively converted the vessel without cause by retaining and sequestering the same. 17. Further, the Defendant has breached itsfiduciary duty to care for the vessel as well as preserve and return the vessel to the Plaintiff. 18. The Defendant has done so without any right, title or interest in the vessel. 3 of 7 FILED: OSWEGO COUNTY CLERK 03/30/2018 11:15 AM INDEX NO. EFC-2018-0527 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/30/2018 19. As such, the Plaintiff is entitled to return of the vessel along with actual, compensatory and punitive damages in an amount as proof may show at trial. 20. In the alternative, the Plaintiff is entitled to damages in the amount of $1,000,000.00 or as proof may show at trial. FOR A SECOND CAUSE OF ACTION DECLARATORY JUDGMENT 21. Plaintiff repeats and realleges paragraphs one through twenty above as if fully set forth herein. 22 Defendant has filed various liens against the vessel for storage charges pursuant to the New York State Lien Law and related statutes. 23. The storage for the vessel arose solely due to the Defendant's breach of contract. Specifically, the failure to repair the vessel rendered itunseaworthy. Further, the Plaintiff continued to request and await the repairs, which were paid for, to be properly completed. 24. No contract or agreement existed for allor most of the storage charges in question. No notice of lien or contract existed with the titledowner to the vessel. The liens are willfully exaggerated and/or completely without basis. The Defendant has not satisfied the requirements of either Article 4 or Section 184 of the New IVew York State Lien Law. 25. Plaintiff is entitled to a declaratory judgment that they are not indebted to the Defendant and that the liens are void. 4 of 7 FILED: OSWEGO COUNTY CLERK 03/30/2018 11:15 AM INDEX NO. EFC-2018-0527 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/30/2018 FOR A THIRD CAUSE OF ACTION PRIMA FACIA TORT 26. Plaintiff repeats and realleges paragraphs one through twenty-five above as if fully set forth herein. 27. The acts ofthe Defendant in interfering with the business and property rights of the Plaintiff constitute a prima facia tort. 28. The Plaintiffhas suffered special damages as a result of the Defendant's actions. 29. The actions of the Defendant were willful and malicious. The same were designed to both extort money and conceal its breach of contract. 30. The Plaintiffis entitled to judgment against Defendant in the amount of SI,000,000.00 or as proofmay show at trialalong with all other actual, compensatory and punitive damages in this matter. FOR A FOURTH CAUSE OF ACTION BREACH OF CONTRACT 31. Plaintiffrepeats and realleges paragraphs one thirty above as if fully set forth herein. 32. Defendant and Plaintiff had an agreement for certain repairs and improvements to the vessel. 33. Though duly paid, the Defendant fails to adequately and properly perform the repairs to the vessel rendering itdefective and not seaworthy. 5 of 7 FILED: OSWEGO COUNTY CLERK 03/30/2018 11:15 AM INDEX NO. EFC-2018-0527 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/30/2018 34. As a result, the vessel cannot be used, needs further repair, and and is not seaworthy. 35. The Plaintiffs have lost use of the vessel for years as a result of waiting for the repairs to be corrected and completed. 36. The Defendant breached itsrepair and work contract with the Plaintiffs. The Defendant will also not return or allow inspection of the vessel. 37. In addition, the Defendants had a duty of good faith and fair dealing with respect to the contract. 38. As a result of the breaches, the Plaintiffs have been damaged in The sum of $1,000,000.00 or as proof may show at trial and should have damage therefore along with the costs and disbursements of this action, actual and other compensatory damages and reasonable attorney's fees. WHEREFORE, the Plaintiff demands judgment: a. requiring return of the vessel; and/or b. an adjudication or judgment that the Plaintiffs are not indebted to the Defendant and, further, that the Defendant has no valid lien on the vessel; and, c. judgment in the amount of S1,000,000.00 or as proof may show at trial; and, d. actual, compensatory and punitive damages in an amount as proof may show at trial;and, e. Such other and further relief as the court finds just and proper including the costs and disbursements of this action and reasonable attorney's fees. 6 of 7 FILED: OSWEGO COUNTY CLERK 03/30/2018 11:15 AM INDEX NO. EFC-2018-0527 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/30/2018 Dated: March 23, 2018 Antonucci Law Firm LLP By: David P. Antonucci Esq. Attorney for Plaintiff Office and P.O. Address 12 Public Square Watertown, New York 13601 and Richard K. Champney Esq. Richard K. Champney P.C. Attorney for Plaintiff Office and P.O. Address 4 Market Street, Suite B Alex.andria Alexandria Bay New York 13607 7 of 7