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FILED: KINGS COUNTY CLERK 12/02/2016 01:52 PM INDEX NO. 521420/2016
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/02/2016
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
-----------------------------------------------------------------X Index No. /2016
EARTH CONSTRUCTION CORP.,
Date Purchased: December , 2016
Plaintiff,
-against- SUMMONS
NEW YORK CITY SCHOOL CONSTRUCTION
AUTHORITY and HUDSON INSURANCE COMPANY,
Defendants. Plaintiff Designates Kings
-----------------------------------------------------------------X County as the place of Trial
Basis of the venue designated is the liens that are
the subject of this action were filed, and the contract
performed, within Kings County, New York.
To the above named Defendant(s): County of Kings
YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve
a copy of your answer, or, if the complaint is not served with this summons, to serve a notice of
appearance, on the Plaintiff’s Attorney(s) within 20 days after the service of this summons,
exclusive of the day of service (or within 30 days after the service is complete if this summons is
not personally delivered to you within the State of New York); and in case of your failure to
appear or answer, judgment will be taken against you by default for the relief demanded herein.
Dated: Valley Stream, New York
December 1, 2016
HIRSCHEL LAW FIRM, P.C.
Attorneys for Plaintiff
71 South Central Avenue, Suite 103
Valley Stream, New York 11580
(516) 742-7070
Defendants’ Address:
New York City School Construction Authority
c/o 30-30 Thomas Avenue, Long Island City, New York
Hudson Insurance Company
c/o New York Department of Financial Services
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
--------------------------------------------------------------------X
EARTH CONSTRUCTION CORP.,
Index No.
Plaintiff,
VERIFIED COMPLAINT
-against-
NEW YORK CITY SCHOOL CONSTRUCTION
AUTHORITY and HUDSON INSURANCE
COMPANY,
Defendants.
--------------------------------------------------------------------X
Plaintiff, EARTH CONSTRUCTION CORP., (hereinafter “Plaintiff”), by their attorneys
HIRSCHEL LAW FIRM, P.C., as and for its Verified Complaint, herein allege as follows:
PARTIES
1. At all times herein mentioned, Plaintiff was and is a New York corporation, with
its principal place of business located within the County of Queens, State of New York.
2. Upon information and belief, at all times herein mentioned, Defendant New York
City School Construction Authority, (hereinafter “Defendant NYCSCA”) was and is a public
authority organized and existing under and by virtue of the laws of the State of New York, with
offices located at 30-30 Thomas Avenue, Long Island City, New York.
3. Upon information and belief, at all times herein mentioned, Defendant Hudson
Insurance Company (hereinafter, “Defendant Hudson Insurance”) is a corporation organized
under the laws of the State of Delaware and is duly authorized by the Superintendent of the
Department of Insurance of the State of New York to transact the business of insurance in New
York, and is qualified to become surety or guarantor on all bonds, undertakings, recognizances,
guaranties and other obligation required or permitted by law.
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VENUE
4. Venue is appropriate in the County of Kings because it is the County in which the
lien was filed and the contract performed.
BACKGROUND FACTS COMMON TO ALL CAUSES OF ACTION
5. Pursuant to Lien Law §5 and §21(3), Plaintiff brings this action on its own behalf
to discharge a lien for public improvement as a person furnishing materials to a contractor for the
construction of a public improvement project pursuant to a contract by such contractor with a
public corporation.
PS 34 (K) ROOF REPLACEMENT, CONTRACT #C000012291
6. Plaintiff’s claims arise from the failure and refusal of Defendant NYCSCA to pay
for certain labor and materials, together with other labor, equipment and materials, provided to
Defendant Arc by Plaintiff and other subcontractors, for its use for the work performed for the
project known as PS 34 (K) Roof Replacement, Brooklyn, Contract #C000012291 (hereinafter,
the “PS 34 Project”).
7. The action seeks, among other relief, the recovery of the amount due the lienor,
$18,282.00.
8. Pursuant to Lien Law §21, Plaintiff seeks to recover on behalf of itself on the
basis of services rendered and materials or equipment used for the PS 34 Project.
9. Plaintiff seeks a determination and allocation of the respective interests of
Plaintiff by this Court.
10. Upon information and belief, on or about June 15, 2011, NJD entered into a
contract with NYCSCA by which, for the consideration set forth therein, NJD agreed to supply
all labor and material sufficient to perform work on a public improvement project at PS 34
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Oliver H. Perry Elementary, located at 131 Norman Street, Brooklyn, New York 11222
(hereinafter the “Subject Property”).
11. On or about June 24, 2011, NJD subcontracted its Project Manager, submittals,
and shop drawings portion to Plaintiff.
12. Plaintiff furnished work, materials and/or equipment pursuant to the contract for
performance of the contract.
13. Plaintiff performed its obligations pursuant to the terms of the contract.
14. Plaintiff has performed all conditions precedent to getting paid under its contract.
15. Plaintiff has demanded payment for work performed pursuant to the terms of its
contract.
16. Plaintiff continued to perform work under the terms of its contract, though it was
not receiving payment for services rendered.
17. Plaintiff performed its obligations under the contract for which it was to be paid in
a reasonably timely manner.
18. Defendant NYCSCA constructively wrongfully terminated the contract with the
Plaintiff by its failure to make payments.
19. Plaintiff performed its obligations under the contract for which it was paid in a
reasonable manner.
20. On or about December 2, 2015, Plaintiff, pursuant to the provisions of the Lien
Law (Lien Law §12 as amended), caused to be timely filed with NYCSCA, the head of the
department having charge of the work under the aforesaid contract, a Notice of Mechanic’s Lien
for the monies due against the Subject Property (a public improvement) in the sum of $18,282.00
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related to work performed at the PS 34 Project. See Attached hereto a copy of said lien is
annexed hereto as Exhibit “1”.
21. Pursuant to Lien Law §11-c, simultaneously with the filing of said notice of lien,
in accordance with §12 of the Lien Law, Plaintiff served a copy of said notice of public
improvement lien by certified mail, return receipt requested, on Defendant NYCSCA.
22. Upon information and belief, Defendant Hudson Insurance was the entity that
Defendant NYCSCA secured for the purposes of obtaining a bond for the work at the Subject
Property.
23. Upon information and belief, on or about June 3, 2011, Defendant Hudson
Insurance, as surety, together with Defendant NYSCA, duly made, executed and acknowledged
and delivered a Bond, known as Hudson Insurance Company Bond No. HGNE-10-188-0045 (the
“Payment Bond”), related to work performed at the PS 34 Project.
24. That Defendant Hudson Insurance as surety of the aforesaid for payment if the
Subject Property assumed an obligation to satisfy all contractual obligations.
25. More than thirty (30) days have elapsed since the claims upon which this action is
based were presented to Defendant NYCSCA.
26. Defendant NYCSCA has failed and/or refused to make payments thereof.
27. Based on the foregoing, Plaintiff is entitled to recover judgment against the
Defendant Hudson Insurance by virtue of its undertaking given to discharge the above lien in the
sum of $18,282.00, plus interests, costs, and attorney’s fees.
MIDWOOD HIGH SCHOOL ATHLETIC FIELD
28. Pursuant to Lien Law §5 and §21(3), Plaintiff brings this action on its own behalf
to discharge a lien for public improvement as a person furnishing materials to a contractor for the
5 of 13
construction of a public improvement project pursuant to a contract by such contractor with a
public corporation.
29. Plaintiff’s claims arise from the failure and refusal of Defendant NYCSCA to pay
for certain labor and materials, together with other labor, equipment and materials, provided to
Defendant Arc by Plaintiff and other subcontractors, for its use for the work performed for the
project known as Midwood High School Athletic Field, Brooklyn, Contract #C000012342
(hereinafter, the “Midwood High School Project”).
30. The action seeks, among other relief, the recovery of the amount due the lienor,
$39,930.38.
31. Pursuant to Lien Law §21, Plaintiff seeks to recover on behalf of itself on the
basis of services rendered and materials or equipment used for the Midwood High School.
32. Plaintiff seeks a determination and allocation of the respective interests of
Plaintiff by this Court.
33. Upon information and belief, on or about July 19, 2011, NJD entered into a
contract with NYCSCA by which, for the consideration set forth therein, NJD agreed to supply
all labor and material sufficient to perform work on a public improvement project located at
1124 East 17th Street, Brooklyn, New York 11210 (hereinafter “Subject Property”).
34. On or about August 26, 2011, NJD subcontracted its Project Manager, submittals,
and shop drawings portion to Plaintiff.
35. Plaintiff furnished work, materials and/or equipment pursuant to the contract for
performance of the contract.
36. Plaintiff performed its obligations pursuant to the terms of the contract.
37. Plaintiff has performed all conditions precedent to getting paid under its contract.
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38. Plaintiff has demanded payment for work performed pursuant to the terms of its
contract.
39. Plaintiff continued to perform work under the terms of its contract, though it was
not receiving payment for services rendered.
40. Plaintiff performed its obligations under the contract for which it was to be paid in
a reasonably timely manner.
41. Defendant NYCSCA constructively wrongfully terminated the contract with the
Plaintiff by its failure to make payments.
42. Plaintiff performed its obligations under the contract for which it was paid in a
reasonable manner.
43. On or about December 2, 2015, Plaintiff, pursuant to the provisions of the Lien
Law (Lien Law §12 as amended), caused to be timely filed with NYCSCA, the head of the
department having charge of the work under the aforesaid contract, a Notice of Mechanic’s Lien
for the monies due against the Subject Property (a public improvement) in the sum of $39,930.38
related to work performed at the Midwood High School. See Attached hereto a copy of said lien
is annexed hereto as Exhibit “2”.
44. Pursuant to Lien Law §11-c, simultaneously with the filing of said notice of lien,
in accordance with §12 of the Lien Law, Plaintiff served a copy of said notice of public
improvement lien by certified mail, return receipt requested, on Defendant NYCSCA.
45. Upon information and belief, Defendant Hudson Insurance was the entity that
Defendant NYCSCA secured for the purposes of obtaining a bond for the work at the Subject
Property.
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46. Upon information and belief, on or about March 31, 2015, Defendant Hudson
Insurance, as surety, together with Defendant NYCSCA, duly made, executed and acknowledged
and delivered a Bond, known as Hudson Insurance Company Bond No. HGNE-10-188-0050 (the
“Payment Bond”), related to work performed at the Midwood High School Project.
47. That Defendant Hudson Insurance as surety of the aforesaid for payment of the
Subject Property assumed an obligation to satisfy all contractual obligations.
48. More than thirty (30) days have elapsed since the claims upon which this action is
based were presented to Defendant NYCSCA.
49. Defendant NYCSCA has failed and/or refused to make payments thereof.
50. Based on the foregoing, Plaintiff is entitled to recover judgment against the
Defendant Hudson Insurance by virtue of its undertaking given to discharge the above lien in the
sum of $39,930.38, plus interests, costs, and attorney’s fees.
AS AND FOR A FIRST CAUSE OF ACTION ON THE COMPLAINT
(Foreclosure of Liens against Defendant NYCSCA, Defendant Hudson Insurance Company
on the Project known as PS 34 (K) Roof Replacement, Brooklyn, Contract #C000012291)
51. Plaintiff repeats and realleges the allegations set forth in paragraphs “1” through
“50” above as though fully set forth at length herein.
52. On or about December 2, 2015, Plaintiff, pursuant to the provisions of the Lien
Law (Lien Law §12 as amended), caused to be timely filed with NYCSCA, the head of the
department having charge of the work under the aforesaid contract, a Notice of Mechanic’s Lien
for the monies due against the Subject Property (a public improvement) in the sum of $18,282.00
related to work performed at the PS 34 Project.
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53. Neither the lien, nor Plaintiff’s claims asserted within that lien, have been waived
or discharged, in part or in whole, and no proceedings have been commenced for the foreclosure
or enforcement thereof or for the recovery of the amounts due to Plaintiff, or for any part thereof.
54. That Plaintiff is owed $18,282.00 related to work performed at the PS 34 Project.
55. That Plaintiff timely served each Notice Under Mechanic’s Lien Law for Account
of Public Improvements.
56. Plaintiff performed each and every obligation on its part to be performed under
the PS 34 (K) Contract with regard to the Subject Property.
57. Plaintiff has no adequate remedy at law.
58. Therefore, Plaintiff has maintained a good and valid lien against the Subject
Property related to work performed at the PS 34 Project and demands judgment against
Defendant NYCSCA and Defendant Hudson Insurance in the sum of $18,282.00, the amount of
its said lien, together with statutory interest, costs, disbursements, and reasonable attorney’s fees.
AS AND FOR A SECOND CAUSE OF ACTION ON THE COMPLAINT
(Breach of the Payment Bond As Against Defendant Hudson Insurance Company on the
Project known as Roof Replacement, Brooklyn, Contract #C000012291)
59. Plaintiff repeats and realleges the allegations sets forth in paragraphs “1” through
“58” above as though fully set forth at length herein.
60. Plaintiff is a beneficiary and/or claimant of the PS 34 Payment Bond and is
expressly afforded a direct right of action thereunder.
61. Plaintiff has satisfied all applicable conditions precedent to the commencement of
this instant action, if any.
62. That the total value of all labor performed and material furnished by Plaintiff to
the Subject Property under the PS 34 Contract, which remains unpaid, is at least $18,282.00.
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63. Hudson has failed to make payments to Plaintiff as required under the PS 34
Payment Bond, leaving the sum of $18,282.00 due and owing to Plaintiff.
64. Hudson’s failure to make payment to Plaintiff constitutes a material breach of the
PS 34 Payment Bond.
65. By reason of the foregoing, Hudson is indebted to Plaintiff in the sum of
$18,282.00, as well as additional fees that will continue to accrue during the pendency of the
instant action, together with interest thereon.
AS AND FOR A THIRD CAUSE OF ACTION ON THE COMPLAINT
(Foreclosure of Liens against Defendant NYCSCA, Defendant Hudson Insurance Company
on the Project known as Midwood High School Athletic Field, Brooklyn, Contract
#C000012342)
66. Plaintiff repeats and realleges the allegations set forth in paragraphs “1” through
“65” above as though fully set forth at length herein.
67. On or about December 2, 2015, Plaintiff, pursuant to the provisions of the Lien
Law (Lien Law §12 as amended), caused to be timely filed with NYCSCA, the head of the
department having charge of the work under the aforesaid contract, a Notice of Mechanic’s Lien
for the monies due against the Subject Property (a public improvement) in the sum of $39,930.38
related to work performed at the Midwood High School Project.
68. Neither the lien, nor Plaintiff’s claims asserted within that lien, have been waived
or discharged, in part or in whole, and no proceedings have been commenced for the foreclosure
or enforcement thereof or for the recovery of the amounts due to Plaintiff, or for any part thereof.
69. That Plaintiff is owed $39,930.38 related to work performed at the Midwood High
School Project.
70. That Plaintiff timely filed and served each Notice Under Mechanic’s Lien Law for
Account of Public Improvements.
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71. Plaintiff performed each and every obligation on its part to be performed under
the Midwood High School Project Contract with regard to the Subject Property.
72. Plaintiff has no adequate remedy at law.
73. Therefore, Plaintiff has maintained a good and valid lien against the Subject
Property related to work performed at the Midwood High School and demands judgment against
Defendant NYCSCA and Defendant Hudson Insurance in the sum of $39,930.38, the amount of
its said lien, together with statutory interest, costs, disbursements, and reasonable attorney’s fees.
AS AND FOR A FOURTH CAUSE OF ACTION ON THE COMPLAINT
(Breach of the Payment Bond as Against Defendant Hudson Insurance Company on the
Project known as Midwood High School Athletic Field, Brooklyn, Contract #C000012342)
74. Plaintiff repeats and realleges the allegations set forth in paragraphs “1” through
“73” above as though fully set forth at length herein.
75. Plaintiff is a beneficiary and/or claimant of the Midwood High School Payment
Bond and is expressly afforded a direct right of action thereunder.
76. Plaintiff has satisfied all applicable conditions precedent to the commencement of
this instant action, if any.
77. That the total value of all labor performed and material furnished by Plaintiff to
the Subject Property under the Midwood High School Contract which remains unpaid is at least
$39,930.38.
78. Hudson has failed to make payments to Plaintiff as required under the Midwood
High School Payment Bond, leaving the sum of $39,930.38 due and owing to Plaintiff.
79. Hudson’s failure to make payments to Plaintiff constitutes a material breach of the
Midwood High School Payment Bond.
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80. By reason of the foregoing, Hudson is indebted to Plaintiff in the sum of
$39,930.38, as well as the additional fees that will continue to accrue during the pendency of the
instant action, together with interest thereon.
WHEREFORE, Plaintiff demands judgment on the: first cause of action against
Defendant NYCSCA on the PS 34 Project in the amount of $18,282.00; second cause of action
against Defendant Hudson Insurance on the PS 34 Project in the amount of $18,282.00; third
cause of action against Defendant NYCSCA on the Midwood High School Project in the amount
of $39,930.38; fourth cause of action against Defendant Hudson Insurance on the Midwood High
School Project in the amount of $39,930.38; together with interest, costs, disbursements and for
such other and further relief as to which this Court deems just and proper.
Dated: Valley Stream, New York
December 1, 2016
HIRSCHEL LAW FIRM, P.C.
Attorneys for Plaintiff
By: /s/
Daniel Hirschel, Esq.
71 South Central Avenue, Suite 103
Valley Stream, New York 11580
(516) 742-7070
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ATTORNEY VERIFICATION
The undersigned, an attorney duly admitted to practice in the courts of New York State,
hereby affirm that I am the principle of the firm of HIRSCHEL LAW FIRM, P.C., the attorneys
of record for the plaintiff in the within action; I have read the foregoing Verified Complaint and
know the contents thereof; that the same is true to my own knowledge, except as to the matters
therein stated to be alleged on information and belief, and as to those matters I believe them to be
true.
The reason this verification is made by me and not by plaintiff is because the plaintiff
does not reside, nor maintain its principal place of business, in the county in which my office is
located.
The grounds of my belief as to all matters not stated upon my own knowledge are the
reports, records and memoranda in my file, together with my own investigation.
Dated: Valley Stream, New York
December 1, 2016
/s/
Daniel Hirschel
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Preview
FILED: KINGS COUNTY CLERK 12/02/2016 01:52 PM INDEX NO. 521420/2016 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/02/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -----------------------------------------------------------------X Index No. /2016 EARTH CONSTRUCTION CORP., Date Purchased: December , 2016 Plaintiff, -against- SUMMONS NEW YORK CITY SCHOOL CONSTRUCTION AUTHORITY and HUDSON INSURANCE COMPANY, Defendants. Plaintiff Designates Kings -----------------------------------------------------------------X County as the place of Trial Basis of the venue designated is the liens that are the subject of this action were filed, and the contract performed, within Kings County, New York. To the above named Defendant(s): County of Kings YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve a copy of your answer, or, if the complaint is not served with this summons, to serve a notice of appearance, on the Plaintiff’s Attorney(s) within 20 days after the service of this summons, exclusive of the day of service (or within 30 days after the service is complete if this summons is not personally delivered to you within the State of New York); and in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded herein. Dated: Valley Stream, New York December 1, 2016 HIRSCHEL LAW FIRM, P.C. Attorneys for Plaintiff 71 South Central Avenue, Suite 103 Valley Stream, New York 11580 (516) 742-7070 Defendants’ Address: New York City School Construction Authority c/o 30-30 Thomas Avenue, Long Island City, New York Hudson Insurance Company c/o New York Department of Financial Services 1 of 13 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS --------------------------------------------------------------------X EARTH CONSTRUCTION CORP., Index No. Plaintiff, VERIFIED COMPLAINT -against- NEW YORK CITY SCHOOL CONSTRUCTION AUTHORITY and HUDSON INSURANCE COMPANY, Defendants. --------------------------------------------------------------------X Plaintiff, EARTH CONSTRUCTION CORP., (hereinafter “Plaintiff”), by their attorneys HIRSCHEL LAW FIRM, P.C., as and for its Verified Complaint, herein allege as follows: PARTIES 1. At all times herein mentioned, Plaintiff was and is a New York corporation, with its principal place of business located within the County of Queens, State of New York. 2. Upon information and belief, at all times herein mentioned, Defendant New York City School Construction Authority, (hereinafter “Defendant NYCSCA”) was and is a public authority organized and existing under and by virtue of the laws of the State of New York, with offices located at 30-30 Thomas Avenue, Long Island City, New York. 3. Upon information and belief, at all times herein mentioned, Defendant Hudson Insurance Company (hereinafter, “Defendant Hudson Insurance”) is a corporation organized under the laws of the State of Delaware and is duly authorized by the Superintendent of the Department of Insurance of the State of New York to transact the business of insurance in New York, and is qualified to become surety or guarantor on all bonds, undertakings, recognizances, guaranties and other obligation required or permitted by law. 2 of 13 VENUE 4. Venue is appropriate in the County of Kings because it is the County in which the lien was filed and the contract performed. BACKGROUND FACTS COMMON TO ALL CAUSES OF ACTION 5. Pursuant to Lien Law §5 and §21(3), Plaintiff brings this action on its own behalf to discharge a lien for public improvement as a person furnishing materials to a contractor for the construction of a public improvement project pursuant to a contract by such contractor with a public corporation. PS 34 (K) ROOF REPLACEMENT, CONTRACT #C000012291 6. Plaintiff’s claims arise from the failure and refusal of Defendant NYCSCA to pay for certain labor and materials, together with other labor, equipment and materials, provided to Defendant Arc by Plaintiff and other subcontractors, for its use for the work performed for the project known as PS 34 (K) Roof Replacement, Brooklyn, Contract #C000012291 (hereinafter, the “PS 34 Project”). 7. The action seeks, among other relief, the recovery of the amount due the lienor, $18,282.00. 8. Pursuant to Lien Law §21, Plaintiff seeks to recover on behalf of itself on the basis of services rendered and materials or equipment used for the PS 34 Project. 9. Plaintiff seeks a determination and allocation of the respective interests of Plaintiff by this Court. 10. Upon information and belief, on or about June 15, 2011, NJD entered into a contract with NYCSCA by which, for the consideration set forth therein, NJD agreed to supply all labor and material sufficient to perform work on a public improvement project at PS 34 3 of 13 Oliver H. Perry Elementary, located at 131 Norman Street, Brooklyn, New York 11222 (hereinafter the “Subject Property”). 11. On or about June 24, 2011, NJD subcontracted its Project Manager, submittals, and shop drawings portion to Plaintiff. 12. Plaintiff furnished work, materials and/or equipment pursuant to the contract for performance of the contract. 13. Plaintiff performed its obligations pursuant to the terms of the contract. 14. Plaintiff has performed all conditions precedent to getting paid under its contract. 15. Plaintiff has demanded payment for work performed pursuant to the terms of its contract. 16. Plaintiff continued to perform work under the terms of its contract, though it was not receiving payment for services rendered. 17. Plaintiff performed its obligations under the contract for which it was to be paid in a reasonably timely manner. 18. Defendant NYCSCA constructively wrongfully terminated the contract with the Plaintiff by its failure to make payments. 19. Plaintiff performed its obligations under the contract for which it was paid in a reasonable manner. 20. On or about December 2, 2015, Plaintiff, pursuant to the provisions of the Lien Law (Lien Law §12 as amended), caused to be timely filed with NYCSCA, the head of the department having charge of the work under the aforesaid contract, a Notice of Mechanic’s Lien for the monies due against the Subject Property (a public improvement) in the sum of $18,282.00 4 of 13 related to work performed at the PS 34 Project. See Attached hereto a copy of said lien is annexed hereto as Exhibit “1”. 21. Pursuant to Lien Law §11-c, simultaneously with the filing of said notice of lien, in accordance with §12 of the Lien Law, Plaintiff served a copy of said notice of public improvement lien by certified mail, return receipt requested, on Defendant NYCSCA. 22. Upon information and belief, Defendant Hudson Insurance was the entity that Defendant NYCSCA secured for the purposes of obtaining a bond for the work at the Subject Property. 23. Upon information and belief, on or about June 3, 2011, Defendant Hudson Insurance, as surety, together with Defendant NYSCA, duly made, executed and acknowledged and delivered a Bond, known as Hudson Insurance Company Bond No. HGNE-10-188-0045 (the “Payment Bond”), related to work performed at the PS 34 Project. 24. That Defendant Hudson Insurance as surety of the aforesaid for payment if the Subject Property assumed an obligation to satisfy all contractual obligations. 25. More than thirty (30) days have elapsed since the claims upon which this action is based were presented to Defendant NYCSCA. 26. Defendant NYCSCA has failed and/or refused to make payments thereof. 27. Based on the foregoing, Plaintiff is entitled to recover judgment against the Defendant Hudson Insurance by virtue of its undertaking given to discharge the above lien in the sum of $18,282.00, plus interests, costs, and attorney’s fees. MIDWOOD HIGH SCHOOL ATHLETIC FIELD 28. Pursuant to Lien Law §5 and §21(3), Plaintiff brings this action on its own behalf to discharge a lien for public improvement as a person furnishing materials to a contractor for the 5 of 13 construction of a public improvement project pursuant to a contract by such contractor with a public corporation. 29. Plaintiff’s claims arise from the failure and refusal of Defendant NYCSCA to pay for certain labor and materials, together with other labor, equipment and materials, provided to Defendant Arc by Plaintiff and other subcontractors, for its use for the work performed for the project known as Midwood High School Athletic Field, Brooklyn, Contract #C000012342 (hereinafter, the “Midwood High School Project”). 30. The action seeks, among other relief, the recovery of the amount due the lienor, $39,930.38. 31. Pursuant to Lien Law §21, Plaintiff seeks to recover on behalf of itself on the basis of services rendered and materials or equipment used for the Midwood High School. 32. Plaintiff seeks a determination and allocation of the respective interests of Plaintiff by this Court. 33. Upon information and belief, on or about July 19, 2011, NJD entered into a contract with NYCSCA by which, for the consideration set forth therein, NJD agreed to supply all labor and material sufficient to perform work on a public improvement project located at 1124 East 17th Street, Brooklyn, New York 11210 (hereinafter “Subject Property”). 34. On or about August 26, 2011, NJD subcontracted its Project Manager, submittals, and shop drawings portion to Plaintiff. 35. Plaintiff furnished work, materials and/or equipment pursuant to the contract for performance of the contract. 36. Plaintiff performed its obligations pursuant to the terms of the contract. 37. Plaintiff has performed all conditions precedent to getting paid under its contract. 6 of 13 38. Plaintiff has demanded payment for work performed pursuant to the terms of its contract. 39. Plaintiff continued to perform work under the terms of its contract, though it was not receiving payment for services rendered. 40. Plaintiff performed its obligations under the contract for which it was to be paid in a reasonably timely manner. 41. Defendant NYCSCA constructively wrongfully terminated the contract with the Plaintiff by its failure to make payments. 42. Plaintiff performed its obligations under the contract for which it was paid in a reasonable manner. 43. On or about December 2, 2015, Plaintiff, pursuant to the provisions of the Lien Law (Lien Law §12 as amended), caused to be timely filed with NYCSCA, the head of the department having charge of the work under the aforesaid contract, a Notice of Mechanic’s Lien for the monies due against the Subject Property (a public improvement) in the sum of $39,930.38 related to work performed at the Midwood High School. See Attached hereto a copy of said lien is annexed hereto as Exhibit “2”. 44. Pursuant to Lien Law §11-c, simultaneously with the filing of said notice of lien, in accordance with §12 of the Lien Law, Plaintiff served a copy of said notice of public improvement lien by certified mail, return receipt requested, on Defendant NYCSCA. 45. Upon information and belief, Defendant Hudson Insurance was the entity that Defendant NYCSCA secured for the purposes of obtaining a bond for the work at the Subject Property. 7 of 13 46. Upon information and belief, on or about March 31, 2015, Defendant Hudson Insurance, as surety, together with Defendant NYCSCA, duly made, executed and acknowledged and delivered a Bond, known as Hudson Insurance Company Bond No. HGNE-10-188-0050 (the “Payment Bond”), related to work performed at the Midwood High School Project. 47. That Defendant Hudson Insurance as surety of the aforesaid for payment of the Subject Property assumed an obligation to satisfy all contractual obligations. 48. More than thirty (30) days have elapsed since the claims upon which this action is based were presented to Defendant NYCSCA. 49. Defendant NYCSCA has failed and/or refused to make payments thereof. 50. Based on the foregoing, Plaintiff is entitled to recover judgment against the Defendant Hudson Insurance by virtue of its undertaking given to discharge the above lien in the sum of $39,930.38, plus interests, costs, and attorney’s fees. AS AND FOR A FIRST CAUSE OF ACTION ON THE COMPLAINT (Foreclosure of Liens against Defendant NYCSCA, Defendant Hudson Insurance Company on the Project known as PS 34 (K) Roof Replacement, Brooklyn, Contract #C000012291) 51. Plaintiff repeats and realleges the allegations set forth in paragraphs “1” through “50” above as though fully set forth at length herein. 52. On or about December 2, 2015, Plaintiff, pursuant to the provisions of the Lien Law (Lien Law §12 as amended), caused to be timely filed with NYCSCA, the head of the department having charge of the work under the aforesaid contract, a Notice of Mechanic’s Lien for the monies due against the Subject Property (a public improvement) in the sum of $18,282.00 related to work performed at the PS 34 Project. 8 of 13 53. Neither the lien, nor Plaintiff’s claims asserted within that lien, have been waived or discharged, in part or in whole, and no proceedings have been commenced for the foreclosure or enforcement thereof or for the recovery of the amounts due to Plaintiff, or for any part thereof. 54. That Plaintiff is owed $18,282.00 related to work performed at the PS 34 Project. 55. That Plaintiff timely served each Notice Under Mechanic’s Lien Law for Account of Public Improvements. 56. Plaintiff performed each and every obligation on its part to be performed under the PS 34 (K) Contract with regard to the Subject Property. 57. Plaintiff has no adequate remedy at law. 58. Therefore, Plaintiff has maintained a good and valid lien against the Subject Property related to work performed at the PS 34 Project and demands judgment against Defendant NYCSCA and Defendant Hudson Insurance in the sum of $18,282.00, the amount of its said lien, together with statutory interest, costs, disbursements, and reasonable attorney’s fees. AS AND FOR A SECOND CAUSE OF ACTION ON THE COMPLAINT (Breach of the Payment Bond As Against Defendant Hudson Insurance Company on the Project known as Roof Replacement, Brooklyn, Contract #C000012291) 59. Plaintiff repeats and realleges the allegations sets forth in paragraphs “1” through “58” above as though fully set forth at length herein. 60. Plaintiff is a beneficiary and/or claimant of the PS 34 Payment Bond and is expressly afforded a direct right of action thereunder. 61. Plaintiff has satisfied all applicable conditions precedent to the commencement of this instant action, if any. 62. That the total value of all labor performed and material furnished by Plaintiff to the Subject Property under the PS 34 Contract, which remains unpaid, is at least $18,282.00. 9 of 13 63. Hudson has failed to make payments to Plaintiff as required under the PS 34 Payment Bond, leaving the sum of $18,282.00 due and owing to Plaintiff. 64. Hudson’s failure to make payment to Plaintiff constitutes a material breach of the PS 34 Payment Bond. 65. By reason of the foregoing, Hudson is indebted to Plaintiff in the sum of $18,282.00, as well as additional fees that will continue to accrue during the pendency of the instant action, together with interest thereon. AS AND FOR A THIRD CAUSE OF ACTION ON THE COMPLAINT (Foreclosure of Liens against Defendant NYCSCA, Defendant Hudson Insurance Company on the Project known as Midwood High School Athletic Field, Brooklyn, Contract #C000012342) 66. Plaintiff repeats and realleges the allegations set forth in paragraphs “1” through “65” above as though fully set forth at length herein. 67. On or about December 2, 2015, Plaintiff, pursuant to the provisions of the Lien Law (Lien Law §12 as amended), caused to be timely filed with NYCSCA, the head of the department having charge of the work under the aforesaid contract, a Notice of Mechanic’s Lien for the monies due against the Subject Property (a public improvement) in the sum of $39,930.38 related to work performed at the Midwood High School Project. 68. Neither the lien, nor Plaintiff’s claims asserted within that lien, have been waived or discharged, in part or in whole, and no proceedings have been commenced for the foreclosure or enforcement thereof or for the recovery of the amounts due to Plaintiff, or for any part thereof. 69. That Plaintiff is owed $39,930.38 related to work performed at the Midwood High School Project. 70. That Plaintiff timely filed and served each Notice Under Mechanic’s Lien Law for Account of Public Improvements. 10 of 13 71. Plaintiff performed each and every obligation on its part to be performed under the Midwood High School Project Contract with regard to the Subject Property. 72. Plaintiff has no adequate remedy at law. 73. Therefore, Plaintiff has maintained a good and valid lien against the Subject Property related to work performed at the Midwood High School and demands judgment against Defendant NYCSCA and Defendant Hudson Insurance in the sum of $39,930.38, the amount of its said lien, together with statutory interest, costs, disbursements, and reasonable attorney’s fees. AS AND FOR A FOURTH CAUSE OF ACTION ON THE COMPLAINT (Breach of the Payment Bond as Against Defendant Hudson Insurance Company on the Project known as Midwood High School Athletic Field, Brooklyn, Contract #C000012342) 74. Plaintiff repeats and realleges the allegations set forth in paragraphs “1” through “73” above as though fully set forth at length herein. 75. Plaintiff is a beneficiary and/or claimant of the Midwood High School Payment Bond and is expressly afforded a direct right of action thereunder. 76. Plaintiff has satisfied all applicable conditions precedent to the commencement of this instant action, if any. 77. That the total value of all labor performed and material furnished by Plaintiff to the Subject Property under the Midwood High School Contract which remains unpaid is at least $39,930.38. 78. Hudson has failed to make payments to Plaintiff as required under the Midwood High School Payment Bond, leaving the sum of $39,930.38 due and owing to Plaintiff. 79. Hudson’s failure to make payments to Plaintiff constitutes a material breach of the Midwood High School Payment Bond. 11 of 13 80. By reason of the foregoing, Hudson is indebted to Plaintiff in the sum of $39,930.38, as well as the additional fees that will continue to accrue during the pendency of the instant action, together with interest thereon. WHEREFORE, Plaintiff demands judgment on the: first cause of action against Defendant NYCSCA on the PS 34 Project in the amount of $18,282.00; second cause of action against Defendant Hudson Insurance on the PS 34 Project in the amount of $18,282.00; third cause of action against Defendant NYCSCA on the Midwood High School Project in the amount of $39,930.38; fourth cause of action against Defendant Hudson Insurance on the Midwood High School Project in the amount of $39,930.38; together with interest, costs, disbursements and for such other and further relief as to which this Court deems just and proper. Dated: Valley Stream, New York December 1, 2016 HIRSCHEL LAW FIRM, P.C. Attorneys for Plaintiff By: /s/ Daniel Hirschel, Esq. 71 South Central Avenue, Suite 103 Valley Stream, New York 11580 (516) 742-7070 12 of 13 ATTORNEY VERIFICATION The undersigned, an attorney duly admitted to practice in the courts of New York State, hereby affirm that I am the principle of the firm of HIRSCHEL LAW FIRM, P.C., the attorneys of record for the plaintiff in the within action; I have read the foregoing Verified Complaint and know the contents thereof; that the same is true to my own knowledge, except as to the matters therein stated to be alleged on information and belief, and as to those matters I believe them to be true. The reason this verification is made by me and not by plaintiff is because the plaintiff does not reside, nor maintain its principal place of business, in the county in which my office is located. The grounds of my belief as to all matters not stated upon my own knowledge are the reports, records and memoranda in my file, together with my own investigation. Dated: Valley Stream, New York December 1, 2016 /s/ Daniel Hirschel 13 of 13