Legal Document: Cardinal B. Smith, Ryan Dougal v. N. Lebron Pools, Inc., Mitch Lebron

On March 06, 2024 a SUMMONS + COMPLAINT - Summons and Verified Complaint was filed involving a dispute between Cardinal B. Smith, Ryan Dougal, and Mitch Lebron, N. Lebron Pools, Inc., for Other Matters - Contract Non-Commercial in the District Court of Westchester County.

Preview
FILED: WESTCHESTER COUNTY CLERK 03/06/2024 03:06 PM INDEX NO. 58159/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/06/2024

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER Index No.:
--------------------------------------------------------------------------
CARDINALE B. SMITH and RYAN DOUGAL, Plaintiff designates
Westchester
Plaintiffs, County as the place of trial
v. The basis of the venue is the
location of where services where
rendered
N. LEBRON POOLS, INC. and MITCH LEBRON,

Defendants. Summons
--------------------------------------------------------------------------- Premises: 883 California Rd,
To the above-named Defendants: Bronxville, New York

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); and 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: Rye, New York DORF NELSON & ZAUDERER LLP
March 6, 2024
By: _______________________
Jonathan Nelson, Esq.
Venesha K. White, Esq
Attorneys for Plaintiffs
555 Theodore Fremd Ave
Rye, New York 10580
(914) 381-7600

1 of 16
FILED: WESTCHESTER COUNTY CLERK 03/06/2024 03:06 PM INDEX NO. 58159/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/06/2024

To: N. LEBRON POOLS, INC
21 Coldspring St # 1,
Norwalk, Ct, 06850

MITCH LEBRON
21 Coldspring St # 1,
Norwalk, Ct, 06850

2 of 16
FILED: WESTCHESTER COUNTY CLERK 03/06/2024 03:06 PM INDEX NO. 58159/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/06/2024

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
--------------------------------------------------------------------------
CARDINALE B. SMITH and RYAN DOUGAL,

Plaintiffs,
VERIFIED COMPLAINT
v.
Index No.:

N. LEBRON POOLS, INC. and MITCH LEBRON,

Defendants.
---------------------------------------------------------------------------

At all relevant times hereinafter mentioned, Plaintiffs Cardinale B. Smith and Ryan

Dougal (collectively the “Plaintiffs”), by their attorneys Dorf Nelson & Zauderer LLP, files

this Summons and Complaint against Defendants, N. LEBRON POOLS, LLC and MITCH

LEBRON (individually as “N. Lebron Pools” and “Mitch” respectively and collectively

referred to herein as “Defendants”), sets forth and alleges, upon information and belief, except

as to allegations concerning Plaintiffs, which are made upon personal knowledge, and

except as otherwise indicated hereinafter, as follows:

PARTIES

1. Plaintiff Cardinale B. Smith is a natural person and resident of the County of

Westchester, State of New York.

2. Plaintiff Ryan Dougal is a natural person is a natural person and resident of the County

of Westchester, State of New York.

3 of 16
FILED: WESTCHESTER COUNTY CLERK 03/06/2024 03:06 PM INDEX NO. 58159/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/06/2024

3. Defendant N. Lebron Pools is a limited liability company duly organized and existing

under the laws of the State of Connecticut, with their principal place of business at 21

Coldspring St # 1, Norwalk, Ct, 06850, United States.

4. N. Lebron Pools is in the business of pool construction, restoration, and repair services,

and masonry work in Westchester County, NY.

5. Defendant Mitch is a natural person and upon information and belief, is the President

and site representative of N. LEBRON POOLS, LLC.

JURISDICTION AND VENUE

6. This Court has jurisdiction over this matter over the matter pursuant to CPLR §301 and

CPLR §§302(a)(l)(2). The parties entered into two contracts for services in

Westchester County. Defendant Mitch committed the tortious act of fraudulent

inducement in Westchester County against Plaintiffs. CPLR § 3016(b).

7. Venue is properly laid in Westchester County pursuant to CPLR § 503 and CPLR

§ 509. The events pleaded herein took place in Westchester County, Plaintiffs reside

in Westchester County, and all services were provided in Westchester County.

FACTS COMMON TO ALL CLAIMS FOR RELIEF

8. On or about February 12, 2022, Plaintiffs and Defendant N. Lebron Pools entered into

a contract pursuant to which N. Lebron Pools would construct an in ground 15' x 30'

Gunite Rectangular Swimming pool with a 5' x 8' raised 18’ spa for Plaintiffs (the "Pool

Contract") at 883 California Rd. Bronxville, New York (the “Subject Premises”).

9. The contract price for the pool, spa, equipment, winter safety cover, and other various

items was $103,700.00. A true and correct copy of the Pool Contract is attached hereto

as Exhibit A.
4

4 of 16
FILED: WESTCHESTER COUNTY CLERK 03/06/2024 03:06 PM INDEX NO. 58159/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/06/2024

10. Pursuant to the terms of the Pool Contract, the contract price was to be paid in seven

payments at certain intervals during the course of the construction of the pool.

11. Within ten (10) months of the pool’s construction the retaining wall surrounding the

pool began to deteriorate. As such, in order to complete the pool, the Town of

Eastchester’s Building Department required the retaining wall to be structurally sound.

12. As a result, Plaintiffs contracted with Architect and Structural Engineer, Laurel

Gaffney, PE (the “Engineer”) for the design specifications for the new retaining wall.

13. On or about March 2, 2023, the Engineer provided the Plaintiffs with the wall

specifications contingent on the Town of Eastchester’s approval. A true and correct

copy of the Engineer’s original wall specification is attached hereto as Exhibit B.

14. Once the wall specifications were available, Mitch as the site manager for N. Lebron

Pools reviewed them and made several representations to the Plaintiffs that N. Lebron

Pools specializes in masonry and, as such, could demolish the existing wall and rebuild

the retaining wall in full compliance with the Engineer’s approved design.

15. Thrilled with the idea that N. Lebron Pools could complete both the pool and wall,

Plaintiffs hired N. Lebron Pools for the wall.

16. On or about March 21, 2023, Plaintiffs and N. Lebron Pools entered into a second

contract pursuant to which N. Lebron Pools would erect and install a slit fence on

neighbors’ side of wall and privacy wall in wood, dig 7’ to cement footings, demo

existing wall and cement footings, install 4’ PVC drain, and install a 12’by 10’ CMU

block cantilevered with vertical bars for Plaintiffs (the "Wall Contract"). A true and

correct copy of the Wall Contract is attached hereto as Exhibit C.

17. The Wall Contract price for the retaining wall and other various items was $88,000.00.
5

5 of 16
FILED: WESTCHESTER COUNTY CLERK 03/06/2024 03:06 PM INDEX NO. 58159/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/06/2024

18. Pursuant to the terms of the Wall Contract, the contract price was to be paid in seven

payments at certain intervals during the course of the construction of the wall.

19. On or around April 18, 2023, the Town of Eastchester’s Building Department granted

permission for Plaintiffs to install the new retaining wall along two sides of the rear

property, along with drainage for the retaining wall, (the “Wall Permit”). Notably, the

Wall Permit listed N. Lebron Pools as the contractor. A true and correct copy of the

Wall Permit is attached hereto as Exhibit D.

20. On April 21, 2023, the Town of Eastchester’s Building Department conducted the first

site visit at the Subject Premises and informed Mitch, prior to the completion of the

job, photos of the work will need to be provided to the Town of Eastchester’s Building

Department (“4/21/23 Site Visit”) Nonetheless, Plaintiffs apprehensively provided the

funds in the interest of moving the pool project along.

21. Specifically, the pictures needed to show the wall’s footings, rebar and foundation

before the wall was closed to ensure the wall structurally sound. A true and correct

copy of the 4/21/23 Site Visit is attached hereto as Exhibit E.

22. However, shortly after the wall project began, it became evident that N. Lebron Pools

was operating at a deficit, as Mitch repeatedly asked Plaintiffs to advance funds that

were not yet due, to cover cost of the vendors and equipment for the construction of

Plaintiffs' pool and retaining wall.

23. Nonetheless, Plaintiffs apprehensively provided the funds in the interest of moving the

pool project along.

6 of 16
FILED: WESTCHESTER COUNTY CLERK 03/06/2024 03:06 PM INDEX NO. 58159/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/06/2024

24. On or about May 8, 2023, the Town of Eastchester’s Building Department conducted

another site visit at the Subject Premise noting the progress on the job and, once again,

reiterated the importance of the N. Lebron Pools providing photos prior to completing

the job ("5/8/23 Site Visit”). A true and correct copy of the 5/8/23 Site Visit is attached

hereto as Exhibit F.

25. On July 23, 2023, the Building Department conducted a third site visit. At that point

the Building Inspector issued a Town Code of Eastchester Ordinance Violation and

failed the wall due to visible large cracks on the surface of the newly constructed

retaining wall (“7/23/23 Site Violation”). A true and correct copy of the 7/23/23 Site

Violation is attached hereto as Exhibit G.

26. The Engineer was informed about the wall’s failure and requested that Mitch

provide the required photos of the wall’s foundation. However, none of the photos

Mitch produced showed that the rebar was installed correctly or that ladder truss

reinforcement was installed in the horizontal mortar joints pursuant to the design.

As a result, the Engineer could not sign off and certify the construction of this wall.

27. Plaintiffs made several efforts to have N. Lebron Pools correct the wall and went

as far as to have the Engineer design reinforcement specifications for the wall

based on the existing work completed to ensure it was up to code and would pass

a subsequent building inspection (the “Reinforcement design”). A true and correct

copy of the Reinforcement design is attached hereto as Exhibit H.

7 of 16
FILED: WESTCHESTER COUNTY CLERK 03/06/2024 03:06 PM INDEX NO. 58159/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/06/2024

28. Mitch as President and site Manager for N. Lebron Pools declined to do further

work on the wall and stated its “work on the wall is complete, if any issues go

through the insurance.”

29. Mitch refused to even discuss the wall’s failure and his blatant disregard of the

Engineer’s approved design when erecting the wall.

30. As a result of Defendants fraud, breach of contract, breach of express and implied

warranty and deceptive acts and trading practices, Plaintiffs were required to pay

a new Contractor to tear down and rebuild the wall.

31. As a result of Defendants fraud, breach of contract, breach of express and implied

warranty and unfair and deceptive trading practices, Plaintiffs were required to pay

the Engineer an additional $7,410.00 to provide reinforcement wall design

specifications in attempt to correct the failed wall.

AS AND FOR A FIRST CAUSE OF ACTION
Deceptive Acts and Practices - Violation of General Business Law Section 349
Against Defendant N. Lebron Pools

32. Plaintiffs repeat and reallege each and every allegation in the paragraphs

designated as “l” through “31” above with the same force and effect as if more

fully set forth herein.

33. The Wall Contract and the actions taken in furtherance of that contract, were

consumer-oriented transactions as defined in New York General Business Law

Section 349.

34. N. Lebron Pools intentionally, fraudulently and deceptively misled Plaintiffs into

believing that the Defendants were trained and equipped to construct the

retaining wall without incident.
8

8 of 16
FILED: WESTCHESTER COUNTY CLERK 03/06/2024 03:06 PM INDEX NO. 58159/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/06/2024

35. Defendants, in fact, were not trained and equipped to construct the retaining wall

per the specifications of the Engineer.

36. N. Lebron Pools was aware of the fraud and deceit occurring on site due to the

numerous complaints.

37. Due to N. Lebron Pools unfair and deceptive trade practices, Plaintiffs is entitled to

recover incidental and consequential damages, costs, fees and interest.

38. As a result of N. Lebron Pools’ material and intentional fraud and deceit, Plaintiffs

were required to purchase additional equipment, hire an Engineer, and hire a

second contractor to properly install the retaining wall per the Engineer’s

specifications.

39. Additionally, pursuant to General Business Law Section (“GBL”) 349, Plaintiffs are

also entitled to treble damages, punitive damages, and attorneys’ fees. Punitive damages

are warranted because the conduct for which N. Lebron Pools is liable evidences a high

degree of moral culpability. Furthermore, Defendants’ conduct was so flagrant as to

transcend mere carelessness. Defendants’ conduct constituted willful and/or wanton

negligence or recklessness.

40. The court may, in its discretion, increase the award of damages to an amount not

to exceed three times the actual damages up to one thousand dollars, if the court

finds the defendant willfully or knowingly violated this section. The court may

award reasonable attorney's fees to the prevailing Plaintiffs.

41. As a result of N. Lebron Pools’ material and intentional fraud and deceit, pursuant

GBL 349, Plaintiffs are entitled to treble damages, punitive damages, and attorneys’

9 of 16
FILED: WESTCHESTER COUNTY CLERK 03/06/2024 03:06 PM INDEX NO. 58159/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/06/2024

fees in an amount to be determined at trial and exceeding jurisdictional limits of

this count.

AS AND FOR A SECOND CAUSE OF ACTION
(Breach of Contract Against N. Lebron Pools)

42. Plaintiff repeats and reiterates each and every allegation contained in paragraphs

“1” through “41” above, as if fully set forth herein.

43. Plaintiffs entered into the written Wall Contract for the construction of the

retaining wall with the Defendant N. Lebron Pools.

44. N. Lebron Pools failed to perform pursuant to the terms of the Wall Contract when

the wall failed.

45. Despite Plaintiffs securing a second Engineer approved reinforcement design to

correct Defendant’s failed wall, N. Lebron Pools outright refused to correct the

wall.

46. Plaintiffs are in full compliance with the Wall Contract and has not breached any

provision thereof. In fact, Plaintiffs paid N. Lebron Pools $20,000.00 more than

the Wall Contract stated to cover constructions issues that Defendant failed to

account for, only to have the wall fail inspection.

47. N. Lebron Pools failed to provide a certain deliverable under the Wall Contract,

including, but not limited to, a structural sound retaining wall pursuant to the

Engineer’s specifications.

10 of 16
FILED: WESTCHESTER COUNTY CLERK 03/06/2024 03:06 PM INDEX NO. 58159/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/06/2024

48. Plaintiffs have suffered damages and loses as a result of N. Lebron Pools breach

of the Wall Contract in an amount to be determined at trial and exceeding

jurisdictional limits of this count.

AS AND FOR A THIRD CAUSE OF ACTION
Breach of Express and Implied Warranties
Against Defendant N. Lebron Pools

49. Plaintiff repeats and reiterates each and every allegation contained in paragraphs

“1” through “48” with the same force and effect as if set forth fully herein.

50. N. Lebron Pools, in connection with its business activities, warranted and

represented, expressly and impliedly, that N. Lebron Pools was capable and proper

for the construction and erection of the retaining wall for the use and uses for which

the wall was intended to be used.

51. N. Lebron Pools, in connection with its business activities, warranted and

represented, expressly and impliedly, that the wall would be structurally sound,

and in conformity with the approved design.

52. Pursuant to the Wall Contract’s warrantees’ provision (“Express Warranty”), “[a]ll

aspects of the work are warranted for two (2) years.”

53. Plaintiffs relied upon N. Lebron Pools representations and warranties including,

but not limited to the express and implied warranties, and was induced by

Defendant N. Lebron Pools representations and warranties to hire and use

Defendants for the wall.

54. Defendant N. Lebron Pools breached its representations and warranties to

Plaintiffs including, but not limited to the Express Warranty to Plaintiffs in that the

11 of 16
FILED: WESTCHESTER COUNTY CLERK 03/06/2024 03:06 PM INDEX NO. 58159/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/06/2024

wall began to crack almost immediately, much less 2 years, and in that it, among

other things, failed to pass code and inspection.

55. By reason of N. Lebron Pools breach of express warranties, Plaintiffs has suffered

damages in an amount to be determined at trial and exceeding jurisdictional limits

of this count.

AS AND FOR A FOURTH CAUSE OF ACTION
Fraudulent Inducement Of Plaintiffs To Enter Into The Wall Contract
Against Defendant Mitch

56. Plaintiffs repeats and reiterates each and every allegation contained in paragraphs “1”

through “55” with the same force and effect as if set forth fully herein.

57. Prior to executing the Wall Contract, Defendant Mitch reviewed the Engineer’s wall

specifications and design for the new wall and emphasized as N. Lebron Pools is a

mason, it could construct, install and erect the wall.

58. In this regard, Mitch reassured Plaintiffs they would be wholly satisfied with his

doing the demo, construction and erection of the new retaining wall pursuant to

the Engineer’s approved specifications without issue or complaints from

surrounding neighbors.

59. Mitch made representations to the Plaintiffs regarding his and Defendant N.

Lebron Pools’ skillset as a mason and their expertise in dealing with concrete.

Mitch went as far as to highlight past successful retaining wall projects completed

by N. Lebron Pools to convince Plaintiffs that Defendants were capable and not

limited to merely creating pools.

12 of 16
FILED: WESTCHESTER COUNTY CLERK 03/06/2024 03:06 PM INDEX NO. 58159/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/06/2024

60. Mitch knew or should have known that the said representations were false when

made and/or acted with gross recklessness in failing to discern the truth of the

representation at the time it was made.

61. Said representations were made by the Mitch with the intention that it be relied

upon by the Plaintiffs in making its decision to hire N. Lebron Pools to complete

the wall project.

62. Plaintiffs did, in fact, rely upon the Defendant Mitch’s representations when

Plaintiffs made its choice to enter into the Wall Contract with N. Lebron Pools.

63. Prior to the Building Inspector’s last visit, Mitch was aware of the cracks and

visible damage on the wall’s surface, yet took no action to correct or reinforce the

wall.

64. At no point in time did Mitch inform the Plaintiffs of the multiple inspection visits,

complications in constructing the wall, nor the fact the erected wall was not in

accordance with the design specifications.

65. Furthermore, upon notification of the new wall’s failure by the Building Inspector

on or about July 23, 2023, again, Defendants refused to take measures to correct

the new wall.

66. Defendant, Mitch made the false representation regarding Defendants’ expertise

with respect to the demo of the existing wall, construction and erection of the new

retaining wall pursuant to the Engineer’s approved specification, in order to induce

Plaintiffs to sign the Wall Contract and generate income for the Defendants.

67. As a result of the above, Plaintiffs have been injured and will continue to be injured

by Mitch’s false representations.
13

13 of 16
FILED: WESTCHESTER COUNTY CLERK 03/06/2024 03:06 PM INDEX NO. 58159/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/06/2024

68. Based upon the foregoing, the Plaintiffs is entitled to a judgment of this Court for

cost to cover Defendant Mitch’s wanton, willful and malicious conduct.

69. As a result of Mitch’s fraudulent inducement, Plaintiffs are entitled to damages in

an amount to be determined at trial and exceeding jurisdictional limits of this count.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs demands judgment as follows:

A. On Plaintiffs’ First Cause of Action, for Deceptive Acts and Practices – Plaintiffs are

entitled to statutory damages pursuant to GBL 349, treble damages, punitive damages,

and attorneys’ fees. The court may, in its discretion, increase the award of damages to an

amount not to exceed three times the actual damages up to one thousand dollars, if the

court finds the defendant willfully or knowingly violated GBL 349.

B. On Plaintiffs’ Second Cause of Action, Breach of Contract, Plaintiffs are entitled to

damages in an amount to be determined at trial and not exceeding jurisdictional limits.

C. On Plaintiffs’ Third Cause of Action, Breach of Express and Implied Warranties;

attorneys’ fees as against Defendant N. Lebron Pools, damages in an amount to be

determined at trial and not exceeding jurisdictional limits.

D. On Plaintiffs’ Fourth Cause of Action, Defendant Mitch’s Fraudulent Inducement of

Plaintiff to Enter into The Wall Contract, Plaintiffs are entitled to damages in an amount

to be determined at trial and not exceeding jurisdictional limits

14 of 16
FILED: WESTCHESTER COUNTY CLERK 03/06/2024 03:06 PM INDEX NO. 58159/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/06/2024

E. Such other and further relief as this Court may deem just, proper, and equitable, together

with the costs and disbursements of this action.

Dated: Rye, New York
March 6, 2024
DORF NELSON & ZAUDERER LLP

By: ____________________________
Jonathan B. Nelson, Esq.
Venesha K. White, Esq.
Attorneys for Plaintiffs
555 Theodore Fremd Avenue
Rye, NY 10580
(914) 381-7600

15 of 16
FILED: WESTCHESTER COUNTY CLERK 03/06/2024 03:06 PM INDEX NO. 58159/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/06/2024

VERIFICATION

STATE OF N E W Y O R K > » SS.
COUNTY OF WESTCHESTER

oh - 7

R Y A N D O U C A L ,b e i n g duly sworn deposes and says:

I am the homeowner o f the Subject Property, the P l a i n t i f f in the above-captioned action. I

have read the foregoing V E R I F I E D C O M P L A I N T and k n o w its contents.T h e contents are true to

m y o w n knowledge, except as to matters stated to be on information and B e l i e f and as to those

matters, I believe them to be true.

The grounds o f m y b e l i e f as to all matters in the V E R I F I E D C O M P L A I N T stated upon m y

o w nk n o w l e d g e are m y personal knowledge and the communications and investigation which I

have made concerning the subject matter o f this V E R I F I E D C O M P L A I N T , and information

acquired i n the course o f m y duties as the homeowner o f the Subject Property. I make the

v e r i f i c a t i o n because I am a d u l y authorized as the homeowner o f the Subject Property.

S w o r n to before me this

2 day o f March , 2024

p a
Notary Public
DAE G O N KIM
kK
Public, State of New Yor!
Noisonse Number: 01Kis396277
Expiration Date: 08/19/2 =
@xEHilified Ih westenester Geur

16 of 16

Case Info

Case No.

(Subscribe to View)

Document Filed Date

March 06, 2024

Case Filing Date

March 06, 2024

County

Parties

For full print and download access, please subscribe at https://www.trellis.law/.

Document for Cardinal B. Smith, Ryan Dougal v. N. Lebron Pools, Inc., Mitch Lebron

Preview

Related Topics

Case Info

Parties