Preview
FILED: NASSAU COUNTY CLERK 07/06/2023 01:33 PM INDEX NO. 610676/2023
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/06/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
__________________________________________________________________________Ç
RIVKIN RADLER LLP
Index No.:
Plaintiff,
--against-- SUMMONS
18 ROUTE 17K LLC and NEW YORK STATE
DEPARTMENT OF TAXATION AND FINANCE,
Defendants.
_________________________________________________________________________Ç
To the above-named Defendants:
YOU ARE HEREBY SUMMONED to answer the Complaint in Interpleader
("Complaint") in this action and to serve a copy of your answer, or, if the Complaint is not served
with the summons, to serve a notice of appearance, on the plaintiff's attorneys within twenty (20)
days after the service of this summons, exclusive of the day of service, or within thirty (30) days
after the completion of service made in any other manner than by personal delivery within the
State. In case of your failure to appear or answer, judgment will be taken against you by default
for the relief demanded in the Complaint.
Dated: Uniondale, New York
July 5, 2023
RIVKIN RADLER LLP
Attorneys for Plaintiff
Katie M. achter
926 RXR Plaza
Uniondale, New York 11556
Tel: (516) 357-3242
Fax: (516) 357-3333
1 of 7
FILED: NASSAU COUNTY CLERK 07/06/2023 01:33 PM INDEX NO. 610676/2023
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/06/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
__________________________________________________________________________Ç
RIVKIN RADLER LLP,
Plaintiff, Index No.:
--against--
COMPLAINT IN
18 ROUTE 17K LLC and NEW YORK STATE INTERPLEADER
DEPARTMENT OF TAXATION AND FINANCE,
Defendants.
__________________________________________________________________________Ç
("Plaintiff"
Interpleader Plaintiff Rivkin Radler LLP or "Rivkin"), by and through its
attorneys, Rivkin Radler LLP, as and for its Complaint in Interpleader against 18 Route 17K LLC
(the "Company") and the New York State Department of Taxation and Finance (collectively, the
"Defendants"), hereby alleges as follows:
THE PARTIES
1. Interpleader Plaintiff at all relevant times hereinafter mentioned is a law firm with
its principal place of business in Uniondale, New York.
2. Defendant New York State Department of Taxation and Finance is the department
of the New York State government responsible for taxation and revenue.
CLAIM FOR INTERPLEADER
3. In or about early 2017, Rivkin represented the Company in connection with a
proposed development project on a commercial lot located at 18 Route 17K in Newburgh, NY (the
"Project").
4. The Company is an affiliate of U.S. Crane & Rigging, LLC, which provides crane
and rigging services throughout New York City. The Project was to be used to store and repair
2 of 7
FILED: NASSAU COUNTY CLERK 07/06/2023 01:33 PM INDEX NO. 610676/2023
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/06/2023
cranes and to fabricate structural steel for use in attaching cranes to buildings and in the
construction of buildings.
5. The Project consisted of: (i) the renovation of an approximately 9,600 square-foot
building, 22,000 square-foot commercial garage and a 2-car wash building; (ii) the construction of
an approximately 66,0000 square-foot addition to the renovations to be used by the Company for
its fabrication operations and related office space; and (iii) the acquisition and installation in, on
and around the addition of certain items of equipment and other tangible personal property.
6. The Company submitted an application to the Orange County Industrial
Development Agency (the "Agency") requesting the Agency's assistance with respect to the
Project.
7. The application requested that the Agency acquire a leasehold interest in the Project
and lease the Project back to the Company. The Company would operate the Project during the
term of the lease. The Agency contemplated providing financial assistance to the Company in the
form of sales and use tax exemptions, a mortgage recording tax exemption, and a real property tax
abatement, consistent with Agency policies.
8. After a public hearing, on May 11, 2017, the Agency accepted the Company's
application and approved certain benefits and financial assistance in connection with the Project,
specifically: (a) an exemption from all New York State and local sales and use tax for purchases
and rentals related to the Project with respect to the qualifying personal property included in or
incorporated into the Project or used in the acquisition, construction, renovation or equipping of
the Project, and (b) an exemption from mortgage recording tax.
9. Between May and November, 2017, the Company purchased certain items of
equipment (see attached Schedule A) for use in connection with the Project.
3 of 7
FILED: NASSAU COUNTY CLERK 07/06/2023 01:33 PM INDEX NO. 610676/2023
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/06/2023
10. In or about February 2019, the Company determined to sell the Property rather than
commence the Project. Accordingly, the Agency rescinded its financial assistance and authorized
the recapture of any sales and use tax exemptions.
11. Following its abandonment of the Project, because the equipment was no longer
necessary for its original purpose, the Company elected to lease the equipment to a third party for
use in such third party's mining operations.
12. On or about May 2, 2019, the Company received a letter from the Agency in which
the Agency took the position that the Company owes $359,487.46 in sales tax because the sales
tax exemption claimed in connection with the Project no longer applied.
13. The Company's position is that no sales tax is owed because the machinery that
was purchased would otherwise have been exempt from sales tax.
14. On or about May 15, 2019, Rivkin had a telephone conversation with Kevin T.
Dowd at the Agency on the Company's behalf. During that conversation, Rivkin agreed that the
Company would deposit the disputed amount into Rivkin's escrow account pending a resolution
on the sales tax issues.
15. Specifically, Rivkin agreed to hold the funds in escrow until either of two
conditions is met: (1) the New York State Department of Taxation and Finance (the "Department")
issues an advisory opinion with regard to whether the machinery purchased is subject to sales tax,
or (2) the Department makes demand for the payment of the funds directly to their attention.
16. Pursuant to this agreement, on or about May 15, 2019, the Company deposited into
Rivkin's escrow the amount of $359,487.46. The funds currently remain in Rivkin's IOLA
account at Citibank.
4 of 7
FILED: NASSAU COUNTY CLERK 07/06/2023 01:33 PM INDEX NO. 610676/2023
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/06/2023
17. On or about June 20, 2019, Rivkin filed a petition for an advisory opinion on this
matter with the Department. The Department acknowledged the petition on or about August 2,
2019.
18. Despite repeated follow-up, the Department did not issue an advisory opinion or
respond to communications regarding when the opinion could be expected.
19. The Department has not made demand for the payment of the funds in dispute.
20. The Agency has not communicated with Rivkin or the Company and has not
responded to requests for information.
21. It is the Company's position that the amount of time the Department has taken to
issue the advisory opinion has become unreasonable in light of the fact that close to four years
have passed since the petition was filed. Accordingly, on or about May 26, 2023, the Company
formally requested immediate withdrawal of its petition for an advisory petition.
22. Given the amount of time that has passed, the Company has requested that Rivkin
release the escrowed funds to it.
23. Rivkin is not ethically permitted to release the funds if entitlement to the funds is
still in dispute. Neither of the conditions precedent to release of the escrowed funds per Rivkin's
agreement with the Agency has occurred, and it appears unlikely that either will ever occur.
24. Rivkin has no stake or interest in the escrowed funds.
25. Rivkin has therefore filed this action requesting that the funds be paid to the court,
and that the court determine to whom the funds belong.
5 of 7
FILED: NASSAU COUNTY CLERK 07/06/2023 01:33 PM INDEX NO. 610676/2023
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/06/2023
WHEREFORE, Plaintiff respectfully requests that this Court enter judgment against
Defendants as follows:
(a) An order permitting Rivkin to pay into the Registry of the Court the amount of the
escrowed funds, totaling $359,487.46;
(b) An order that the Defendants each be restrained from initiating any other action against
Rivkin for recovery of the funds;
(c) An order that the Defendants each be required to interplead regarding their claims to
the funds;
(d) An order that Rivkin be found to have no further liability to any of the parties to this
action on account or in connection with the funds;
(e) An order that Rivkin be discharged and dismissed with prejudice from this case; and
(f) An order awarding Rivkin any such other relief that this Court deems just and proper
in accordance with C.P.L.R. § 1006,
Dated: Uniondale, New York
July 5, 2023
RIVKIN RADLER LLP
Attorneys for Plaintiff
Katie M. Lacht
926 RXR Plaza
Uniondale, New York 11556
Tel: (516) 357-3242
Fax: (516) 357-3333
7604909.v I
6 of 7
FILED: NASSAU COUNTY CLERK 07/06/2023 01:33 PM INDEX NO. 610676/2023
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/06/2023
Schedule A
Line Vendor Equipment I.D. Number Date Date Amount
Item Purchased Received
1 Durante Rentals 4 Tower Lights 4000W NLPROll 08/23/17 08/23/17 20,000.00
GENSET 15KVA
2 Durante Rentals Generator T3 09/08/17 09/21/17 65,200.00
63'
3 Durante Rentals Sky Boom Lift SJ63AJ 08/17/18 09/21/17 98,650.00
CAT 374F - 2016 - Hydraulic
4 H.O. Penn Excavator DNM00395 05/19/17 05/23/17 707,896.00
CAT 374F - 2017 - Hydraulic
5 H.O. Penn Excavator EBF10033 09/08/17 09/11/17 829,900.00
6 H.O. Penn CAT CS56B - Soil Compactor OL8H00797 08/22/17 09/12/17 110,400.00
7 Ideal Mfg. Inc. 1 Barrel Silos + misc. equipment 0810310-4 08/31/17 09/18/17 24,115.00
8 Ideal Mfg. Inc. 1 Barrel Silos + misc. equipment 0810310-5 08/31/17 09/25/17 24,115.00
Iron Horse
9 Equipment Hydraulic Hammer RB92215 08/23/17 11/07/17 148,800.00
10 Liebherr USA, Co. L538 Wheel Loader 1559-46235 07/24/17 10/04/17 189,930.00
11 Liebberr USA, Co. L586 XPower Loader . 1334-46464 07/24/17 10/26/17 469,250,00
12 Liebherr USA, Co. R956 Hydraulic Excavator 1476-43048 07/24/17 10/12/17 484,410.00
13 Liebherr USA, Co. Mobile Concrete Batching Plant Mobilmix 0.5 09/07/17 10/24/17
326,795.00_
14 Liebberr - Bulldozer
USA, Co. PR756 KM756.2BOG.1R 08/24/17 01/16/17 700,000.00
15 Toyota Forklift S/N11244 11/07/17 75,000.00
16 Toyota Forklift S/N11245 11/07/17 75,000.00
17 Toyota Forklift S/N11246 11/07/17 75,000.00
Totals 4,424,461.00
7 of 7
Preview
FILED: NASSAU COUNTY CLERK 07/06/2023 01:33 PM INDEX NO. 610676/2023 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/06/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU __________________________________________________________________________Ç RIVKIN RADLER LLP Index No.: Plaintiff, --against-- SUMMONS 18 ROUTE 17K LLC and NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE, Defendants. _________________________________________________________________________Ç To the above-named Defendants: YOU ARE HEREBY SUMMONED to answer the Complaint in Interpleader ("Complaint") in this action and to serve a copy of your answer, or, if the Complaint is not served with the summons, to serve a notice of appearance, on the plaintiff's attorneys within twenty (20) days after the service of this summons, exclusive of the day of service, or within thirty (30) days after the completion of service made in any other manner than by personal delivery within the State. In case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the Complaint. Dated: Uniondale, New York July 5, 2023 RIVKIN RADLER LLP Attorneys for Plaintiff Katie M. achter 926 RXR Plaza Uniondale, New York 11556 Tel: (516) 357-3242 Fax: (516) 357-3333 1 of 7 FILED: NASSAU COUNTY CLERK 07/06/2023 01:33 PM INDEX NO. 610676/2023 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/06/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU __________________________________________________________________________Ç RIVKIN RADLER LLP, Plaintiff, Index No.: --against-- COMPLAINT IN 18 ROUTE 17K LLC and NEW YORK STATE INTERPLEADER DEPARTMENT OF TAXATION AND FINANCE, Defendants. __________________________________________________________________________Ç ("Plaintiff" Interpleader Plaintiff Rivkin Radler LLP or "Rivkin"), by and through its attorneys, Rivkin Radler LLP, as and for its Complaint in Interpleader against 18 Route 17K LLC (the "Company") and the New York State Department of Taxation and Finance (collectively, the "Defendants"), hereby alleges as follows: THE PARTIES 1. Interpleader Plaintiff at all relevant times hereinafter mentioned is a law firm with its principal place of business in Uniondale, New York. 2. Defendant New York State Department of Taxation and Finance is the department of the New York State government responsible for taxation and revenue. CLAIM FOR INTERPLEADER 3. In or about early 2017, Rivkin represented the Company in connection with a proposed development project on a commercial lot located at 18 Route 17K in Newburgh, NY (the "Project"). 4. The Company is an affiliate of U.S. Crane & Rigging, LLC, which provides crane and rigging services throughout New York City. The Project was to be used to store and repair 2 of 7 FILED: NASSAU COUNTY CLERK 07/06/2023 01:33 PM INDEX NO. 610676/2023 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/06/2023 cranes and to fabricate structural steel for use in attaching cranes to buildings and in the construction of buildings. 5. The Project consisted of: (i) the renovation of an approximately 9,600 square-foot building, 22,000 square-foot commercial garage and a 2-car wash building; (ii) the construction of an approximately 66,0000 square-foot addition to the renovations to be used by the Company for its fabrication operations and related office space; and (iii) the acquisition and installation in, on and around the addition of certain items of equipment and other tangible personal property. 6. The Company submitted an application to the Orange County Industrial Development Agency (the "Agency") requesting the Agency's assistance with respect to the Project. 7. The application requested that the Agency acquire a leasehold interest in the Project and lease the Project back to the Company. The Company would operate the Project during the term of the lease. The Agency contemplated providing financial assistance to the Company in the form of sales and use tax exemptions, a mortgage recording tax exemption, and a real property tax abatement, consistent with Agency policies. 8. After a public hearing, on May 11, 2017, the Agency accepted the Company's application and approved certain benefits and financial assistance in connection with the Project, specifically: (a) an exemption from all New York State and local sales and use tax for purchases and rentals related to the Project with respect to the qualifying personal property included in or incorporated into the Project or used in the acquisition, construction, renovation or equipping of the Project, and (b) an exemption from mortgage recording tax. 9. Between May and November, 2017, the Company purchased certain items of equipment (see attached Schedule A) for use in connection with the Project. 3 of 7 FILED: NASSAU COUNTY CLERK 07/06/2023 01:33 PM INDEX NO. 610676/2023 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/06/2023 10. In or about February 2019, the Company determined to sell the Property rather than commence the Project. Accordingly, the Agency rescinded its financial assistance and authorized the recapture of any sales and use tax exemptions. 11. Following its abandonment of the Project, because the equipment was no longer necessary for its original purpose, the Company elected to lease the equipment to a third party for use in such third party's mining operations. 12. On or about May 2, 2019, the Company received a letter from the Agency in which the Agency took the position that the Company owes $359,487.46 in sales tax because the sales tax exemption claimed in connection with the Project no longer applied. 13. The Company's position is that no sales tax is owed because the machinery that was purchased would otherwise have been exempt from sales tax. 14. On or about May 15, 2019, Rivkin had a telephone conversation with Kevin T. Dowd at the Agency on the Company's behalf. During that conversation, Rivkin agreed that the Company would deposit the disputed amount into Rivkin's escrow account pending a resolution on the sales tax issues. 15. Specifically, Rivkin agreed to hold the funds in escrow until either of two conditions is met: (1) the New York State Department of Taxation and Finance (the "Department") issues an advisory opinion with regard to whether the machinery purchased is subject to sales tax, or (2) the Department makes demand for the payment of the funds directly to their attention. 16. Pursuant to this agreement, on or about May 15, 2019, the Company deposited into Rivkin's escrow the amount of $359,487.46. The funds currently remain in Rivkin's IOLA account at Citibank. 4 of 7 FILED: NASSAU COUNTY CLERK 07/06/2023 01:33 PM INDEX NO. 610676/2023 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/06/2023 17. On or about June 20, 2019, Rivkin filed a petition for an advisory opinion on this matter with the Department. The Department acknowledged the petition on or about August 2, 2019. 18. Despite repeated follow-up, the Department did not issue an advisory opinion or respond to communications regarding when the opinion could be expected. 19. The Department has not made demand for the payment of the funds in dispute. 20. The Agency has not communicated with Rivkin or the Company and has not responded to requests for information. 21. It is the Company's position that the amount of time the Department has taken to issue the advisory opinion has become unreasonable in light of the fact that close to four years have passed since the petition was filed. Accordingly, on or about May 26, 2023, the Company formally requested immediate withdrawal of its petition for an advisory petition. 22. Given the amount of time that has passed, the Company has requested that Rivkin release the escrowed funds to it. 23. Rivkin is not ethically permitted to release the funds if entitlement to the funds is still in dispute. Neither of the conditions precedent to release of the escrowed funds per Rivkin's agreement with the Agency has occurred, and it appears unlikely that either will ever occur. 24. Rivkin has no stake or interest in the escrowed funds. 25. Rivkin has therefore filed this action requesting that the funds be paid to the court, and that the court determine to whom the funds belong. 5 of 7 FILED: NASSAU COUNTY CLERK 07/06/2023 01:33 PM INDEX NO. 610676/2023 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/06/2023 WHEREFORE, Plaintiff respectfully requests that this Court enter judgment against Defendants as follows: (a) An order permitting Rivkin to pay into the Registry of the Court the amount of the escrowed funds, totaling $359,487.46; (b) An order that the Defendants each be restrained from initiating any other action against Rivkin for recovery of the funds; (c) An order that the Defendants each be required to interplead regarding their claims to the funds; (d) An order that Rivkin be found to have no further liability to any of the parties to this action on account or in connection with the funds; (e) An order that Rivkin be discharged and dismissed with prejudice from this case; and (f) An order awarding Rivkin any such other relief that this Court deems just and proper in accordance with C.P.L.R. § 1006, Dated: Uniondale, New York July 5, 2023 RIVKIN RADLER LLP Attorneys for Plaintiff Katie M. Lacht 926 RXR Plaza Uniondale, New York 11556 Tel: (516) 357-3242 Fax: (516) 357-3333 7604909.v I 6 of 7 FILED: NASSAU COUNTY CLERK 07/06/2023 01:33 PM INDEX NO. 610676/2023 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/06/2023 Schedule A Line Vendor Equipment I.D. Number Date Date Amount Item Purchased Received 1 Durante Rentals 4 Tower Lights 4000W NLPROll 08/23/17 08/23/17 20,000.00 GENSET 15KVA 2 Durante Rentals Generator T3 09/08/17 09/21/17 65,200.00 63' 3 Durante Rentals Sky Boom Lift SJ63AJ 08/17/18 09/21/17 98,650.00 CAT 374F - 2016 - Hydraulic 4 H.O. Penn Excavator DNM00395 05/19/17 05/23/17 707,896.00 CAT 374F - 2017 - Hydraulic 5 H.O. Penn Excavator EBF10033 09/08/17 09/11/17 829,900.00 6 H.O. Penn CAT CS56B - Soil Compactor OL8H00797 08/22/17 09/12/17 110,400.00 7 Ideal Mfg. Inc. 1 Barrel Silos + misc. equipment 0810310-4 08/31/17 09/18/17 24,115.00 8 Ideal Mfg. Inc. 1 Barrel Silos + misc. equipment 0810310-5 08/31/17 09/25/17 24,115.00 Iron Horse 9 Equipment Hydraulic Hammer RB92215 08/23/17 11/07/17 148,800.00 10 Liebherr USA, Co. L538 Wheel Loader 1559-46235 07/24/17 10/04/17 189,930.00 11 Liebberr USA, Co. L586 XPower Loader . 1334-46464 07/24/17 10/26/17 469,250,00 12 Liebherr USA, Co. R956 Hydraulic Excavator 1476-43048 07/24/17 10/12/17 484,410.00 13 Liebherr USA, Co. Mobile Concrete Batching Plant Mobilmix 0.5 09/07/17 10/24/17 326,795.00_ 14 Liebberr - Bulldozer USA, Co. PR756 KM756.2BOG.1R 08/24/17 01/16/17 700,000.00 15 Toyota Forklift S/N11244 11/07/17 75,000.00 16 Toyota Forklift S/N11245 11/07/17 75,000.00 17 Toyota Forklift S/N11246 11/07/17 75,000.00 Totals 4,424,461.00 7 of 7