Preview
FILED: ESSEX COUNTY CLERK 09/13/2022 04:06 PM INDEX NO. CV22-0203
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 09/13/2022
STATE OF NEW YORK
SUPREME COURT ESSEX COUNTY
Index No. CV22-o203
RJI No. 15-1-2022-o131E
GRISTMILL BUILDERS, LTD., )
Plaintiff, )
)
v. )
)
MICHAEL URFIRER & DONALDA )
FORDYCE-URFIRER, )
Defendants. )
COMPLAINT
NOW COMES Plaintiff Gristmill Builders, Ltd., by and through its attorneys,
Monaghan Safar Ducham PLLC, and hereby complains against Defendants Michael
Urfirer and Donalda Fordyce-Urfirer as follows:
I. PARTIES
1. Plaintiff Gristmill Builders, Ltd., is a building and remodeling company
incorporated in Vermont. Its principal place of business is 5430 Waterbury-Stowe
Road in Waterbury Center, Vermont.
2. Brendan O'Reilly is the president, sole director, and registered agent for
Gristmill Builders.
3. Defendants Michael Urfirer and Donalda Fordyce-Urfirer are residents
of New York. They own a second home located at 26 Yacht Club Way in Lake Placid,
New York ("Property").
II. JURISDICTION
4. Gristmill Builders repeats and re-alleges the allegations contained in
the paragraphs above.
5. The State of New York, Supreme Court, Essex County has jurisdiction
GHAN
over this matter.
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m. FACTS
6. Gristmill Builders repeats and re-alleges the allegations contained in
the paragraphs above.
7. On October 10, 2012, Gristmill Builders and Defendants executed a
valid contract by which Gristmill Builders was to construct the Property following
previous work by other contractors.
8. That contract consisted primarily of an Agreement based on AIA
Document A103-2007. It also included Conditions of the Contract, Drawings,
Specifications issued prior to the execution of the Agreement, other documents listed
in the Agreement, and an Owner's Rider attached to the Agreement.
9. The Agreement listed (1) Jerome Kent as Inspecting Architect, (2) Mark
Yoo as Architect of Record, (3) Shope Reno Wharton Architecture as Interior
Defendants'
Architect, (4) Engineering Ventures as representative for engineering
and structural issues, (5) Dan Natchez and Associates and Lemond and Associates
Defendants'
Engineering as representatives for civil/site work, (6) Guidepost
Solutions (a forensic accounting firm) as Defendant's representatives for
accounting/financial issues, and (7) Plumb Excel Group Engineering, P.C., for HVAC
and electrical issues.
10. As a point of clarification, after several invoices, Michael McClung
replaced Jerome Kent as Inspecting Architect, and Scott Allegretto was the
designated lead at Guidepost Solutions for purposes of forensic accounting.
"cost-plus"
11. That contract was structured as a contract whereby the basis
of payment to Gristmill Builders would be the cost of the work plus a fee, and the cost
would not be fully known at the commencement of construction. Specifically,
GHAN to terms of the Defendants were to Gristmill Builders
according the Agreement, pay
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FILED: ESSEX COUNTY CLERK 09/13/2022 04:06 PM INDEX NO. CV22-0203
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 09/13/2022
Work" Fee."
the actual "Cost of the plus a "Contractor's Both of those terms were
defined in the Agreement.
Work,"
12. As for the "Cost of the Article 7 of the Agreement defined that
term as meaning "costs necessarily incurred by the Contractor in the proper
Work."
performance of the It included "costs necessarily incurred by the Contractor
Work"
in the proper performance of the and "[s]uch costs shall be at rates not higher
than the standard paid at the place of the Project except with prior consent of the
Owner." costs,"
Those costs were to include (1) "labor meaning "[w]ages of
construction workers directly employed by the Contractor to perform the
construction of the Work at the site or, with the Owner's prior approval, at off-site
costs,"
workshops"; (2) "subcontract meaning "[p]ayments made by the Contractor
to Subcontractors in accordance with the requirements of the subcontracts; (3) "costs
construction,"
of materials and equipment incorporated in the completed meaning
"[c]osts including transportation and storage at the site of materials and equipment
incorporated, or to be incorporated, in the completed construction"; (4) "costs of
other materials and equipment, temporary facilities and related items"; and
costs."
(5) "miscellaneous
13. Additionally, as to dispute resolution, the Agreement states that "[a]ll
disputes arising out of this Agreement shall in the first instance be submitted to the
satisfaction"
Inspecting Architect to attempt to resolve to Owner's and Contractor's
and "if the Inspecting Architect does not resolve the dispute the parties will be
mediation."
directed to
14. As for disputes not resolved by the above provisions, the Agreement
states that "[a]ny matter not resolved by mediation shall be referred to binding
MONAGHAN
SAFAR
DUCHAM PLLC
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FILED: ESSEX COUNTY CLERK 09/13/2022 04:06 PM INDEX NO. CV22-0203
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arbitration pursuant to the rules and procedures of the American Arbitration
Rules."
Association in accordance with Construction Arbitration
Industry
15. Furthermore, the Agreement also states that "[p]ayments due and
unpaid under the Contract shall bear interest from the date payment is due at the
percent."
rate . . . [of] Two (2.0%)
16. Gristmill Builders performed all work required pursuant to the
contract.
17. As required by the contract, after commencing work, Gristmill Builders
would send to Defendants an invoice each month detailing the amount owed for that
month's work, including any and all invoices or bills regarding rental equipment and
subcontractors.
18. In total, Gristmill Builders sent Defendants thirty-one invoices.
19. Upon receipt of each monthly bill, Guidepost Solutions would review
the bill and approve payment.
20. Without cause, Defendants refused to pay significant amounts detailed
in the monthly invoices, specifically for work completed from May 2015 to August
2016.
21. In total, the unpaid amount owed by Defendants to Gristmill Builders
is $583,613-50, including (1) $198,038.22 in unpaid work, (2) $45,000 in contractor
fixed fees, (3) $25,000 for general conditions, (4) $36,204.83 for the final invoice,
(5) $279,370-45 in retainage, and (6) interest on these unpaid amounts.
22. Mr. O'Reilly attempted several times to recover the unpaid amounts but
was rejected by Defendants.
Defendants'
23. Following consistent refusal to pay the requested amounts,
ON GHAN of the Mr. sought the assistance of
in accordance with the terms Agreement, O'Reilly
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Mr. Kent, the Inspecting Architect, to resolve the dispute. Mr. Kent was unable to
resolve the dispute.
24. Later, undersigned counsel for Gristmill Builders attempted to arrange
mediation and arbitration with counsel for Defendants to resolve the dispute, but
Defendants were unwilling to engage in either mediation or arbitration.
IV. COUNT I: BREACH OF CONTRACT FOR FAILURE TO PAY
25. Gristmill Builders repeats and re-alleges the allegations contained in
the paragraphs above.
26. Gristmill Builders performed all work required pursuant to the
contract.
27. Without cause, Defendants have refused to pay for significant amounts
of the work performed by Gristmill Builders.
28. Accordingly, Defendants are liable for their breach of contract with
Gristmill builders, to the amount of $583,613-50, plus interest.
V. COUNT II: BREACH OF CONTRACT FOR FAILURE TO
ADHERE TO THE AGREEMENT'S DISPUTE RESOLUTION
PROVISIONS
29. Gristmill Builders repeats and re-alleges the allegations contained in
the paragraphs above.
30. Without cause, Defendants have refused to adhere to the Agreement's
dispute resolution provisions, including engaging in mediation and arbitration.
parties'
31. This refusal constitutes a breach of the contract.
VI. REQUEST FOR JURY TRIAL
32. Gristmill Builders repeats and re-alleges the allegations contained in
the paragraphs above.
GHAN Builders requests a jury trial on all issues so triable.
33. Gristmill hereby
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WHEREFORE, Plaintiff Gristmill Builders, Ltd., respectfully requests that this
honorable Court:
(a) Award Gristmill Builders, Ltd. $583,613.50 in unpaid amounts, plus
interest and attorney's fees;
(b) Grant any further relief that this Court deems equitable and just.
Dated at thiS 12th of 2022.
Burlington, Vermont, day September,
Respectfully Submitted,
Claudine C. Safar, Esq.
Christian S. Chorba, Esq.
Attorneys for Gristmill Builders, Ltd.
Monaghan Safar Ducham PLLC
156 Battery Street
Burlington, VT 05401
(802) 660-4735
(802) 419-3662 (facsimile)
esafar@msdvt.com
cchorba@msdvt.com
rd C. Engel, Esq.
Mackenzie Hughes LLP
440 S. Warren Street, Suite 400
Mackenzie Hughes Tower
Syracuse, New York 13202
(315) 233-8220
rengel@mackenziehughes.com
MONAGHAN
SAFAR
DUCHAM me
O
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Preview
FILED: ESSEX COUNTY CLERK 09/13/2022 04:06 PM INDEX NO. CV22-0203 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 09/13/2022 STATE OF NEW YORK SUPREME COURT ESSEX COUNTY Index No. CV22-o203 RJI No. 15-1-2022-o131E GRISTMILL BUILDERS, LTD., ) Plaintiff, ) ) v. ) ) MICHAEL URFIRER & DONALDA ) FORDYCE-URFIRER, ) Defendants. ) COMPLAINT NOW COMES Plaintiff Gristmill Builders, Ltd., by and through its attorneys, Monaghan Safar Ducham PLLC, and hereby complains against Defendants Michael Urfirer and Donalda Fordyce-Urfirer as follows: I. PARTIES 1. Plaintiff Gristmill Builders, Ltd., is a building and remodeling company incorporated in Vermont. Its principal place of business is 5430 Waterbury-Stowe Road in Waterbury Center, Vermont. 2. Brendan O'Reilly is the president, sole director, and registered agent for Gristmill Builders. 3. Defendants Michael Urfirer and Donalda Fordyce-Urfirer are residents of New York. They own a second home located at 26 Yacht Club Way in Lake Placid, New York ("Property"). II. JURISDICTION 4. Gristmill Builders repeats and re-alleges the allegations contained in the paragraphs above. 5. The State of New York, Supreme Court, Essex County has jurisdiction GHAN over this matter. DUCHAM - 1 of 6 FILED: ESSEX COUNTY CLERK 09/13/2022 04:06 PM INDEX NO. CV22-0203 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 09/13/2022 m. FACTS 6. Gristmill Builders repeats and re-alleges the allegations contained in the paragraphs above. 7. On October 10, 2012, Gristmill Builders and Defendants executed a valid contract by which Gristmill Builders was to construct the Property following previous work by other contractors. 8. That contract consisted primarily of an Agreement based on AIA Document A103-2007. It also included Conditions of the Contract, Drawings, Specifications issued prior to the execution of the Agreement, other documents listed in the Agreement, and an Owner's Rider attached to the Agreement. 9. The Agreement listed (1) Jerome Kent as Inspecting Architect, (2) Mark Yoo as Architect of Record, (3) Shope Reno Wharton Architecture as Interior Defendants' Architect, (4) Engineering Ventures as representative for engineering and structural issues, (5) Dan Natchez and Associates and Lemond and Associates Defendants' Engineering as representatives for civil/site work, (6) Guidepost Solutions (a forensic accounting firm) as Defendant's representatives for accounting/financial issues, and (7) Plumb Excel Group Engineering, P.C., for HVAC and electrical issues. 10. As a point of clarification, after several invoices, Michael McClung replaced Jerome Kent as Inspecting Architect, and Scott Allegretto was the designated lead at Guidepost Solutions for purposes of forensic accounting. "cost-plus" 11. That contract was structured as a contract whereby the basis of payment to Gristmill Builders would be the cost of the work plus a fee, and the cost would not be fully known at the commencement of construction. Specifically, GHAN to terms of the Defendants were to Gristmill Builders according the Agreement, pay DUCHAM - 2 of 6 FILED: ESSEX COUNTY CLERK 09/13/2022 04:06 PM INDEX NO. CV22-0203 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 09/13/2022 Work" Fee." the actual "Cost of the plus a "Contractor's Both of those terms were defined in the Agreement. Work," 12. As for the "Cost of the Article 7 of the Agreement defined that term as meaning "costs necessarily incurred by the Contractor in the proper Work." performance of the It included "costs necessarily incurred by the Contractor Work" in the proper performance of the and "[s]uch costs shall be at rates not higher than the standard paid at the place of the Project except with prior consent of the Owner." costs," Those costs were to include (1) "labor meaning "[w]ages of construction workers directly employed by the Contractor to perform the construction of the Work at the site or, with the Owner's prior approval, at off-site costs," workshops"; (2) "subcontract meaning "[p]ayments made by the Contractor to Subcontractors in accordance with the requirements of the subcontracts; (3) "costs construction," of materials and equipment incorporated in the completed meaning "[c]osts including transportation and storage at the site of materials and equipment incorporated, or to be incorporated, in the completed construction"; (4) "costs of other materials and equipment, temporary facilities and related items"; and costs." (5) "miscellaneous 13. Additionally, as to dispute resolution, the Agreement states that "[a]ll disputes arising out of this Agreement shall in the first instance be submitted to the satisfaction" Inspecting Architect to attempt to resolve to Owner's and Contractor's and "if the Inspecting Architect does not resolve the dispute the parties will be mediation." directed to 14. As for disputes not resolved by the above provisions, the Agreement states that "[a]ny matter not resolved by mediation shall be referred to binding MONAGHAN SAFAR DUCHAM PLLC 3 of 6 FILED: ESSEX COUNTY CLERK 09/13/2022 04:06 PM INDEX NO. CV22-0203 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 09/13/2022 arbitration pursuant to the rules and procedures of the American Arbitration Rules." Association in accordance with Construction Arbitration Industry 15. Furthermore, the Agreement also states that "[p]ayments due and unpaid under the Contract shall bear interest from the date payment is due at the percent." rate . . . [of] Two (2.0%) 16. Gristmill Builders performed all work required pursuant to the contract. 17. As required by the contract, after commencing work, Gristmill Builders would send to Defendants an invoice each month detailing the amount owed for that month's work, including any and all invoices or bills regarding rental equipment and subcontractors. 18. In total, Gristmill Builders sent Defendants thirty-one invoices. 19. Upon receipt of each monthly bill, Guidepost Solutions would review the bill and approve payment. 20. Without cause, Defendants refused to pay significant amounts detailed in the monthly invoices, specifically for work completed from May 2015 to August 2016. 21. In total, the unpaid amount owed by Defendants to Gristmill Builders is $583,613-50, including (1) $198,038.22 in unpaid work, (2) $45,000 in contractor fixed fees, (3) $25,000 for general conditions, (4) $36,204.83 for the final invoice, (5) $279,370-45 in retainage, and (6) interest on these unpaid amounts. 22. Mr. O'Reilly attempted several times to recover the unpaid amounts but was rejected by Defendants. Defendants' 23. Following consistent refusal to pay the requested amounts, ON GHAN of the Mr. sought the assistance of in accordance with the terms Agreement, O'Reilly DUCHAM - 4 of 6 FILED: ESSEX COUNTY CLERK 09/13/2022 04:06 PM INDEX NO. CV22-0203 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 09/13/2022 Mr. Kent, the Inspecting Architect, to resolve the dispute. Mr. Kent was unable to resolve the dispute. 24. Later, undersigned counsel for Gristmill Builders attempted to arrange mediation and arbitration with counsel for Defendants to resolve the dispute, but Defendants were unwilling to engage in either mediation or arbitration. IV. COUNT I: BREACH OF CONTRACT FOR FAILURE TO PAY 25. Gristmill Builders repeats and re-alleges the allegations contained in the paragraphs above. 26. Gristmill Builders performed all work required pursuant to the contract. 27. Without cause, Defendants have refused to pay for significant amounts of the work performed by Gristmill Builders. 28. Accordingly, Defendants are liable for their breach of contract with Gristmill builders, to the amount of $583,613-50, plus interest. V. COUNT II: BREACH OF CONTRACT FOR FAILURE TO ADHERE TO THE AGREEMENT'S DISPUTE RESOLUTION PROVISIONS 29. Gristmill Builders repeats and re-alleges the allegations contained in the paragraphs above. 30. Without cause, Defendants have refused to adhere to the Agreement's dispute resolution provisions, including engaging in mediation and arbitration. parties' 31. This refusal constitutes a breach of the contract. VI. REQUEST FOR JURY TRIAL 32. Gristmill Builders repeats and re-alleges the allegations contained in the paragraphs above. GHAN Builders requests a jury trial on all issues so triable. 33. Gristmill hereby DUCHAM me 5 of 6 FILED: ESSEX COUNTY CLERK 09/13/2022 04:06 PM INDEX NO. CV22-0203 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 09/13/2022 WHEREFORE, Plaintiff Gristmill Builders, Ltd., respectfully requests that this honorable Court: (a) Award Gristmill Builders, Ltd. $583,613.50 in unpaid amounts, plus interest and attorney's fees; (b) Grant any further relief that this Court deems equitable and just. Dated at thiS 12th of 2022. Burlington, Vermont, day September, Respectfully Submitted, Claudine C. Safar, Esq. Christian S. Chorba, Esq. Attorneys for Gristmill Builders, Ltd. Monaghan Safar Ducham PLLC 156 Battery Street Burlington, VT 05401 (802) 660-4735 (802) 419-3662 (facsimile) esafar@msdvt.com cchorba@msdvt.com rd C. Engel, Esq. Mackenzie Hughes LLP 440 S. Warren Street, Suite 400 Mackenzie Hughes Tower Syracuse, New York 13202 (315) 233-8220 rengel@mackenziehughes.com MONAGHAN SAFAR DUCHAM me O 6 of 6