Preview
FILED: KINGS COUNTY CLERK 03/15/2021 10:29 AM INDEX NO. 522914/2020
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 03/15/2021
FILED: KINGS COUNTY CLERK 03/15/2021 10:29 AM INDEX NO. 522914/2020
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 03/15/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS X
CARMEN COFRANCESCO and
METRO CONTRACTING SERVICES LLC,
Plaintiffs, THIRD AMENDED COMPLAINT
-against- Index No. 522914/2020
SD BUILDERS and CONSTRUCTION LLC,
SLATE PROPERTY GROUP LLC and
DYNATEC CONTRACTING INC.
Defendants.
X
Plaintiffs, Carmen CoFrancesco ("CC") and Metro Contracting Services LLC ("Metro")
(collectively "Plaintiffs"), by and through their attorney Richard A. Rosenzweig, Esq. P.C., as and
for their third amended complaint against Defendants, allege as follows:
THE PARTIES
1. Plaintiff Metro is a New Jersey limited liability company.
2. Plaintiff CC is a resident of the state of New Jersey.
3. Upon information and belief, Defendant, SD Builders and Construction LLC ("SD"), is a
New York limited liability corspañy, with itsprincipal place of business in the State of New York
County of Kings.
4. Upon information and belief, Defendant, Slate Property Group LLC ("Slate"), is a
Delaware corporation, with itsprincipal place of business in Nassau County, NY.
5. Upon information and belief, Defendant, Dynatec Contracting, Inc. ("Dynatec") is a New
York corporation, with itsprincipal place of business in Queens County.
FILED: KINGS COUNTY CLERK 03/15/2021 10:29 AM INDEX NO. 522914/2020
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 03/15/2021
_ALLEGATIONS COMMON TO ALL CAUSES OF ACTION
6. Upon information and belief, Slate was and is in the business of commercial
developing
real estate in New York City.
up" division"
7. In June 2014, CC was hired Slate to "head its "construction in New York
by
City, with the intent and purpose to perform general on sites for which Slate had a
contracting
contract to develop the sites for a profit.
8. With respect to the projects to be developed, Slate was in place as the "site
already
developer", and upon formation of its construction division, itwould then also be the general
contractor.
9. Slate and CC entered into a verbal agreement whereby Slate agreed that CC was to be paid
a gross weekly salary of $4,807.00, as head of construction (the "Agreement").
10. In addition to salary, CC, via Metro, was also to be paid a minimum of $50,000.00 in annual
bonuses, but said bonuses could be higher if CC was able to have a project completed below the
budget.
11. Specifically, CC was entitled to 10% of the savings on each project as and for his bonus
compensation under the Agreement. The Agreement is outlined in Exhibit "A".
12. Slate had requested that CC form a corporation ("Metro") in order to make the bonus
payments to that company, which payments CC had earned.
13. Further, part of the construction cost savings was shifted to Dynatec toward itsrole in the
construction process, which caused greater profitability to Dynatec and in turn to SD, and CC was
savings"
entitled to receive 10% of the net "buy out from Dynatec and SD as well.
14. In furtherance, thereof, CC formed Metro and indeed one payment from Deynatec was
made directly to Metro. See Exhibit "B".
2
FILED: KINGS COUNTY CLERK 03/15/2021 10:29 AM INDEX NO. 522914/2020
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 03/15/2021
15. At one point, rather than Slate operating as CC's employer, SD operated as such and took
joint responsibility for the Agreement along with Slate, and as set forth below, Dynatec joined the
partnership or joint venture of Slate and SD.
16. Upon information and belief, Defendants are interrelated and act as partners or through a
joint venture for all of the subject projects and were allresponsible for payment of the bonuses to
Plaintiffs, making all Defendants jointly and severally liable.
17. All Defendants agreed, verbally or in writing, to pay Plaintiffs the moneys earned by, and
that became due and owing to, Plaintiff with respect to the shared savings on the subject projects.
18. From 2014 through June 2019, Metro worked on a total of 16 projects on behalf of
Defendants.
19. Defendants, through Dynatec, paid the bonus to Plaintiffs for the first project, known as 83
Bushwick Place, Brooklyn New York, in the sum of approximately $24,000.00, representing 10%
of the savings of $240,000.00 on that project, itwas the only bonus he received even though there
were cost savings on 9 of the other projects, for which Plaintiffs have not been, but are entitled to
be, paid:
i. 66 Ainslie Street, Brooklyn, New York (savings of $1,670,000.00 for a 10%
bonus of $167,000.00);
ii. 1 Flatbush Avenue, Brooklyn,, New York (savings of $300,000.00 resulting in a
10% bonus due of $30,000.00);
4th $2,240,000.00 in a
iii. 535 Avenue, Brooklyn, New York (savings of resulting
10% bonus due of $224,000.00);
54th in
iv. 420 East Street, Brooklyn, New York (savings of $7,600,000.00) resulting
a 10% bonus due of $760,000.00);
3
FILED: KINGS COUNTY CLERK 03/15/2021 10:29 AM INDEX NO. 522914/2020
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 03/15/2021
v. 222 Johnson Avenue, Brooklyn New York (savings of $2,228,000.00 resulting in
a bonus of $222,800.00);
vi. 159 Boerum Street, Brooklyn, New York [Brownfield Tax Credit and Site
Preparation] of $12,600,000.00 resulting in a 10% bonus of (as
$1,260,000.00)
Slade is only a 50% owner the amount due to Plaintiffs is $630,000.00);
vii. 109 Second Avenue Brooklyn, New York (savings of $550,000.00 in a
resulting
10% bonus due of $55,000.00).
viii. Reimbursement of expenses of $14,304.05.
18. The total due to Plaintiffs from Defendants is $2,103,104.05.
19. Plaintiffs sent invoices to Defendants showing the balañces due to Plaintiffs from
Defendants, which Defendants received and retained without protest or objection of
$2,103,104.05. See Exhibit "C".
20. Defendants have not paid the amount due despite demand and the sum of $2,103,104.05
is due and owing to Plaintiffs from Defendants.
21. Defendants terminated the agreements with Plaintiffs prior to payment of the bonuses due
to Plaintiffs in an effort to avoid paying Plaintiffs their shares.
22. Plaintiffs fully performed the agreed upon services.
23. Plaintiffs made verbal demands upon Defendants for payment in or about September 2020,
but Defendants failed and refused to pay accordingly.
24. All Defendants benefitted from, and have been unjustly enriched by, the services provided
Plaintiffs'
by Plaintiffs, for which Plaintiffs have not been fully paid, all to detriment.
25. Plaintiffs repeats and re-allege each of the foregoing allegations under each of the
following causes of action.
4
FILED: KINGS COUNTY CLERK 03/15/2021 10:29 AM INDEX NO. 522914/2020
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 03/15/2021
AS AND FOR A FIRST CAUSE OF ACTION
Defendants' Plaintiffs'
26. failure and refusal to for services under
pay the agreemeñts,
constitutes a breach of contract, causing damages to Plaintiffs of $2,103,104.05.
27. Defendants are liable to Plaintiffs for breach of contract.
AS AND FOR A SECOND CAUSE OF ACTION
Defendants'
28. receipt and retention of the invoices without protest or objection within a
reasonable time, constitutes an account stated.
29. The invoices show a balance due and from Defendants to Plaintiffs of
owing
$2,103,104.05.
30. Defendants are liable to Plaintiffs for account stated in the sum of $2,103,104.05.
AS AND FOR A THIRD CAUSE OF ACTION
31. Defendants have been unjustly enriched by Plaintiffs services, for which payment has not
been received, to Plaintiffs detriment.
32. Defendants are liable to Plaintiffs for unjust enrichment in the sum of $2,103,104.05.
AS AND FOR A FOURTH CAUSE OF ACTION
33. Defendants promised the aforesaid bonuses to Plaintiff if Plaintiffs obtained savings on
the various projects or brought them in below budget.
34. In reasonable reliance on said promises, Defendants performed and obtained such
savings.
35. Defendants have not paid the value of the savings to Plaintiffs despite demand yet have
Plaintiffs'
benefitted from performance and results.
36. Defendants are liable to Plaintiffs for promissory estoppel.
5
FILED: KINGS COUNTY CLERK 03/15/2021 10:29 AM INDEX NO. 522914/2020
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 03/15/2021
WHEREFORE, Plaintiffs demand judgment in the amount of $2,103,104.05, plus interest, costs,
legal fees, and such other and further relief as the Court deems just and proper.
Dated: Staten Island, New York
March 3, 2021
Richard A. Rosenzweig, Esq. P.C.
By:
Richard A. Rosenzweig, Esq.
3rd
57 Beach Street, FlOOr
Staten Island, NY 10304
917-301-1868
6
FILED: KINGS COUNTY CLERK 03/15/2021 10:29 AM INDEX NO. 522914/2020
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 03/15/2021
Index No. 522914/2020
PLEASE take notice thatthe within is a (certified) SUPREME COURT OF THE STATE OF NEW YORK
truecopy of a COUNTY OF KINGS
duly entered in theoffice of theclerk of thewithin CARMEN COFRANCESCO and
METRO CONTRACTING SERVICES LLC,
Dated, Plaintiff,
Yours, etc., -against-
RICHARD A. ROSENZWEIG, ESQ. P.C.
SD BUILDERS and CONSTRUCTION LLC,
SLATE PROPERTY GROUP LLC and
DYNATEC CONTRACTING INC.
Attorneys for Plaintiff
Ofice and Post Office Address Defendants.
57 Beach 3rd plOOr
Street,
Staten Island, New York 19304
Attorney(s) for
NOTICE OF CROSS MOTION
NOTI EDFSETTIRMFNT
PLEASE take notice thatan order Signature (Rule 130-1.1a)
of which the within isa true copy willbe presented Richard A. Rosenzweig, Esq. P.C.
one of the judges of thewithin named Court, at
RICHARD A. ROSENZWElG, ESQ. P.C.
Ofice and Post Office Address, Telephone
57 BEACH 3RD FLOOR
Date:, STREET,
Yours, etc. STATEN ISLAND, NEW YORK 10314
RICHARD A. ROSENZWEIG, ESQ. P.C 917-301-1868
Attorneys for
Ofice and Post OfficeAddress To
57 Beach 3RD
Street,
Staten Island, NY 10304 Attorney(s) for
Service of a copy of thewithin is hereby admitted.
Dated
To ................................................
Attorney(s) for Attorney(s) for
Preview
FILED: KINGS COUNTY CLERK 03/15/2021 10:29 AM INDEX NO. 522914/2020 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 03/15/2021 FILED: KINGS COUNTY CLERK 03/15/2021 10:29 AM INDEX NO. 522914/2020 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 03/15/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS X CARMEN COFRANCESCO and METRO CONTRACTING SERVICES LLC, Plaintiffs, THIRD AMENDED COMPLAINT -against- Index No. 522914/2020 SD BUILDERS and CONSTRUCTION LLC, SLATE PROPERTY GROUP LLC and DYNATEC CONTRACTING INC. Defendants. X Plaintiffs, Carmen CoFrancesco ("CC") and Metro Contracting Services LLC ("Metro") (collectively "Plaintiffs"), by and through their attorney Richard A. Rosenzweig, Esq. P.C., as and for their third amended complaint against Defendants, allege as follows: THE PARTIES 1. Plaintiff Metro is a New Jersey limited liability company. 2. Plaintiff CC is a resident of the state of New Jersey. 3. Upon information and belief, Defendant, SD Builders and Construction LLC ("SD"), is a New York limited liability corspañy, with itsprincipal place of business in the State of New York County of Kings. 4. Upon information and belief, Defendant, Slate Property Group LLC ("Slate"), is a Delaware corporation, with itsprincipal place of business in Nassau County, NY. 5. Upon information and belief, Defendant, Dynatec Contracting, Inc. ("Dynatec") is a New York corporation, with itsprincipal place of business in Queens County. FILED: KINGS COUNTY CLERK 03/15/2021 10:29 AM INDEX NO. 522914/2020 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 03/15/2021 _ALLEGATIONS COMMON TO ALL CAUSES OF ACTION 6. Upon information and belief, Slate was and is in the business of commercial developing real estate in New York City. up" division" 7. In June 2014, CC was hired Slate to "head its "construction in New York by City, with the intent and purpose to perform general on sites for which Slate had a contracting contract to develop the sites for a profit. 8. With respect to the projects to be developed, Slate was in place as the "site already developer", and upon formation of its construction division, itwould then also be the general contractor. 9. Slate and CC entered into a verbal agreement whereby Slate agreed that CC was to be paid a gross weekly salary of $4,807.00, as head of construction (the "Agreement"). 10. In addition to salary, CC, via Metro, was also to be paid a minimum of $50,000.00 in annual bonuses, but said bonuses could be higher if CC was able to have a project completed below the budget. 11. Specifically, CC was entitled to 10% of the savings on each project as and for his bonus compensation under the Agreement. The Agreement is outlined in Exhibit "A". 12. Slate had requested that CC form a corporation ("Metro") in order to make the bonus payments to that company, which payments CC had earned. 13. Further, part of the construction cost savings was shifted to Dynatec toward itsrole in the construction process, which caused greater profitability to Dynatec and in turn to SD, and CC was savings" entitled to receive 10% of the net "buy out from Dynatec and SD as well. 14. In furtherance, thereof, CC formed Metro and indeed one payment from Deynatec was made directly to Metro. See Exhibit "B". 2 FILED: KINGS COUNTY CLERK 03/15/2021 10:29 AM INDEX NO. 522914/2020 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 03/15/2021 15. At one point, rather than Slate operating as CC's employer, SD operated as such and took joint responsibility for the Agreement along with Slate, and as set forth below, Dynatec joined the partnership or joint venture of Slate and SD. 16. Upon information and belief, Defendants are interrelated and act as partners or through a joint venture for all of the subject projects and were allresponsible for payment of the bonuses to Plaintiffs, making all Defendants jointly and severally liable. 17. All Defendants agreed, verbally or in writing, to pay Plaintiffs the moneys earned by, and that became due and owing to, Plaintiff with respect to the shared savings on the subject projects. 18. From 2014 through June 2019, Metro worked on a total of 16 projects on behalf of Defendants. 19. Defendants, through Dynatec, paid the bonus to Plaintiffs for the first project, known as 83 Bushwick Place, Brooklyn New York, in the sum of approximately $24,000.00, representing 10% of the savings of $240,000.00 on that project, itwas the only bonus he received even though there were cost savings on 9 of the other projects, for which Plaintiffs have not been, but are entitled to be, paid: i. 66 Ainslie Street, Brooklyn, New York (savings of $1,670,000.00 for a 10% bonus of $167,000.00); ii. 1 Flatbush Avenue, Brooklyn,, New York (savings of $300,000.00 resulting in a 10% bonus due of $30,000.00); 4th $2,240,000.00 in a iii. 535 Avenue, Brooklyn, New York (savings of resulting 10% bonus due of $224,000.00); 54th in iv. 420 East Street, Brooklyn, New York (savings of $7,600,000.00) resulting a 10% bonus due of $760,000.00); 3 FILED: KINGS COUNTY CLERK 03/15/2021 10:29 AM INDEX NO. 522914/2020 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 03/15/2021 v. 222 Johnson Avenue, Brooklyn New York (savings of $2,228,000.00 resulting in a bonus of $222,800.00); vi. 159 Boerum Street, Brooklyn, New York [Brownfield Tax Credit and Site Preparation] of $12,600,000.00 resulting in a 10% bonus of (as $1,260,000.00) Slade is only a 50% owner the amount due to Plaintiffs is $630,000.00); vii. 109 Second Avenue Brooklyn, New York (savings of $550,000.00 in a resulting 10% bonus due of $55,000.00). viii. Reimbursement of expenses of $14,304.05. 18. The total due to Plaintiffs from Defendants is $2,103,104.05. 19. Plaintiffs sent invoices to Defendants showing the balañces due to Plaintiffs from Defendants, which Defendants received and retained without protest or objection of $2,103,104.05. See Exhibit "C". 20. Defendants have not paid the amount due despite demand and the sum of $2,103,104.05 is due and owing to Plaintiffs from Defendants. 21. Defendants terminated the agreements with Plaintiffs prior to payment of the bonuses due to Plaintiffs in an effort to avoid paying Plaintiffs their shares. 22. Plaintiffs fully performed the agreed upon services. 23. Plaintiffs made verbal demands upon Defendants for payment in or about September 2020, but Defendants failed and refused to pay accordingly. 24. All Defendants benefitted from, and have been unjustly enriched by, the services provided Plaintiffs' by Plaintiffs, for which Plaintiffs have not been fully paid, all to detriment. 25. Plaintiffs repeats and re-allege each of the foregoing allegations under each of the following causes of action. 4 FILED: KINGS COUNTY CLERK 03/15/2021 10:29 AM INDEX NO. 522914/2020 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 03/15/2021 AS AND FOR A FIRST CAUSE OF ACTION Defendants' Plaintiffs' 26. failure and refusal to for services under pay the agreemeñts, constitutes a breach of contract, causing damages to Plaintiffs of $2,103,104.05. 27. Defendants are liable to Plaintiffs for breach of contract. AS AND FOR A SECOND CAUSE OF ACTION Defendants' 28. receipt and retention of the invoices without protest or objection within a reasonable time, constitutes an account stated. 29. The invoices show a balance due and from Defendants to Plaintiffs of owing $2,103,104.05. 30. Defendants are liable to Plaintiffs for account stated in the sum of $2,103,104.05. AS AND FOR A THIRD CAUSE OF ACTION 31. Defendants have been unjustly enriched by Plaintiffs services, for which payment has not been received, to Plaintiffs detriment. 32. Defendants are liable to Plaintiffs for unjust enrichment in the sum of $2,103,104.05. AS AND FOR A FOURTH CAUSE OF ACTION 33. Defendants promised the aforesaid bonuses to Plaintiff if Plaintiffs obtained savings on the various projects or brought them in below budget. 34. In reasonable reliance on said promises, Defendants performed and obtained such savings. 35. Defendants have not paid the value of the savings to Plaintiffs despite demand yet have Plaintiffs' benefitted from performance and results. 36. Defendants are liable to Plaintiffs for promissory estoppel. 5 FILED: KINGS COUNTY CLERK 03/15/2021 10:29 AM INDEX NO. 522914/2020 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 03/15/2021 WHEREFORE, Plaintiffs demand judgment in the amount of $2,103,104.05, plus interest, costs, legal fees, and such other and further relief as the Court deems just and proper. Dated: Staten Island, New York March 3, 2021 Richard A. Rosenzweig, Esq. P.C. By: Richard A. Rosenzweig, Esq. 3rd 57 Beach Street, FlOOr Staten Island, NY 10304 917-301-1868 6 FILED: KINGS COUNTY CLERK 03/15/2021 10:29 AM INDEX NO. 522914/2020 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 03/15/2021 Index No. 522914/2020 PLEASE take notice thatthe within is a (certified) SUPREME COURT OF THE STATE OF NEW YORK truecopy of a COUNTY OF KINGS duly entered in theoffice of theclerk of thewithin CARMEN COFRANCESCO and METRO CONTRACTING SERVICES LLC, Dated, Plaintiff, Yours, etc., -against- RICHARD A. ROSENZWEIG, ESQ. P.C. SD BUILDERS and CONSTRUCTION LLC, SLATE PROPERTY GROUP LLC and DYNATEC CONTRACTING INC. Attorneys for Plaintiff Ofice and Post Office Address Defendants. 57 Beach 3rd plOOr Street, Staten Island, New York 19304 Attorney(s) for NOTICE OF CROSS MOTION NOTI EDFSETTIRMFNT PLEASE take notice thatan order Signature (Rule 130-1.1a) of which the within isa true copy willbe presented Richard A. Rosenzweig, Esq. P.C. one of the judges of thewithin named Court, at RICHARD A. ROSENZWElG, ESQ. P.C. Ofice and Post Office Address, Telephone 57 BEACH 3RD FLOOR Date:, STREET, Yours, etc. STATEN ISLAND, NEW YORK 10314 RICHARD A. ROSENZWEIG, ESQ. P.C 917-301-1868 Attorneys for Ofice and Post OfficeAddress To 57 Beach 3RD Street, Staten Island, NY 10304 Attorney(s) for Service of a copy of thewithin is hereby admitted. Dated To ................................................ Attorney(s) for Attorney(s) for