Preview
FILED: NEW YORK COUNTY CLERK 04/04/2024 04:41 PM INDEX NO. 650218/2024
NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 04/04/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
____________________________________________
ARMY CONSTRUCTION LLC, ) Index No.: 650218/2024
)
Plaintiff, )
) REPLY AFFIRMATION
-against- )
)
NATIONAL DOOR & HARDWARE INC., MARIO ) Justice Assigned: Hon. Lyle E.
GONZALEZ, MARTIN BLUM, MARK ) Frank, J.S.C.
MOLINUEVO, and NELSON A. ALMONTE, )
)
Defendants. )
WILLIAM Y. FOWLKES, ESQ., an attorney duly admitted to practice law before the
Courts of the State of New York, hereby affirms the following to be true under the penalties of
perjury and upon information and belief:
1. I am associated with the law firm of M. CABRERA & ASSOCIATES, P.C., the
attorneys representing defendants NATIONAL DOOR & HARDWARE INC. (“National
Door”), MARIO GONZALEZ (“Gonzalez”) and MARK MOLINUEVO (collectively
“Defendants”), in the above-captioned matter. I have full knowledge of the defenses of the
defendant. As such, I am fully familiar with the facts and circumstances herein. The source of
Your Affirmant’s information and the grounds for this belief are the law office files maintained
for the defense of this action.
2. I submit this Affirmation in Reply to Plaintiff ARMY CONSTRUCTION LLC’s
(hereinafter “Plaintiff”) opposition to Defendants’ Motion to Dismiss Plaintiff’s Complaint
pursuant to CPLR 3211(a)(1) and (7), returnable on April 5, 2024.
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3. Defendant’s motion to dismiss should be granted based upon the documentary
evidence and because Plaintiff has failed to state a cause of action regarding its torturous
interference with business relationship and fraud claims.
4. Plaintiff sets forth as its opposition the Affidavit of Abdul Bajro, President of
Plaintiff and the Affirmation and Memorandum of Law of Plaintiff’s attorney Michael D. Ganz,
Esq.
A. Plaintiff’s First Cause of Action- Breach of Contract
5. Mr. Bajro attaches as “Exhibit 2” to his Affidavit a copy of the subject Agreement
dated July 17, 2023, for the purchase of doors and related hardware, but which does not specify a
particular manufacturer of the doors or hardware. Mr. Bajro references plan and specification
numbers in the Agreement.
6. Mr. Bajro next attaches as “Exhibit 3” to his Affidavit purported “SCA Specified
Requirements”, and attests “The Court is advised that Manufacturer C. “Ceco Door Products
Div. Milan TN 38353” (“Ceco”) is one of the seven (7) SCA-approved Door manufacturers.”
See Bajro Aff’d ¶ 9. However, Plaintiff fails to submit an Affidavit from a representative of the
SCA who can attest to its internal requirements regarding specified manufacturers, or who can
provide a foundation for the purported “SCA Specified Requirements” document attached to the
Affidavit of Plaintiff’s representative.
7. The purported “SCA Specified Requirements” is dated “03/28/22”, and without
testimonial evidence from an SCA representative, there is no way of knowing whether these
alleged requirements were in effect at the time the subject Agreement was entered into in July of
2023. Furthermore, page 5 of this document merely lists seven manufacturers, including Ceco,
under the heading “2.01 MANUFACTURERS”. There is no indication that this is a list of
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required manufacturers. Furthermore, this document is not signed by any representative of
National Door and is not specifically referenced in the subject Agreement.
8. Mr. Bajro next cites an email submission made by a representative of National
Door in January of 2023 which included “Ceco Door” mentioned thereon, and architectural plans
which mention same. See Exhibits 5-6 to Barjo Affidavit. Mr. Bajro states in conclusory fashion,
“Clearly National Door was aware of the SCA Door manufacturer requirements, including those
in its Quotes/Agreements and submitted CECO to Army from the approved list of Door
Manufacturers”. However, it is not clear that National Door was required of purported SCA
requirements simply by an email submission or architectural plans which contains the words
“Ceco Door”, but which does not give reference to knowledge or any alleged requirements. To
remind the Court, Plaintiff fails to include the Affidavit of an SCA representative who can testify
to its own manufacturer requirements.
9. Mr. Bajro’s Affidavit contains additional hearsay testimony in that he attests that
HMFExpress doors were “in fact specifically rejected by the SCA for use at the Project.” See
Bajro Aff’d ¶ 16. Mr. Bajro also claims without any substantiation that HMFExpress doors were
“unsafe”. See Bajro Aff’d ¶ 17.
10. The documentary evidence demonstrates that there was not any specifically
documented requirement in the Agreement that Ceco Door must be used. Accordingly, Plaintiff’s
breach of contract cause of action must be dismissed as it cannot demonstrate that National Door
breached its obligations.
B. Plaintiff’s Second and Third Causes of Action- Tortious Interference with Business
Relations and Fraud
11. As argued in Defendants’ moving papers, Plaintiff’s allegations amount to a simple,
straightforward breach of contract claim- that National Door allegedly supplied doors by an
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unauthorized manufacturer in violation of the parties’ Agreement. Plaintiff is attempting to
improperly use this breach of contract claim to shoehorn additional tort claims against the
individual defendants.
12. Regarding the tortious interference claim, there are simply no specific allegations
that any of the individual defendants acted for the sole purpose of harming Plaintiff’s business
relationship with the SCA. Mr. Bajro attests in broad, conclusory fashion, “The Defendants were
aware that Army had an existing business relationship with SCA, including the Prime Contract
and of Army’s desire to obtain further work from SCA. See Bajro Aff’d ¶ 31. Plaintiff is again
treating the individual Defendants as a whole. There are no specific allegations in its opposition
regarding which individual defendant was aware of Plaintiff’s business relationship with the SCA
and which defendant used improper or illegal means to interference with that business relationship,
etc.
13. Regarding its fraud claim, Mr. Bajro attests, “Prior to Army entering into the
National Door Agreement, the Defendants had represented to Army that they had knowledge
concerning the requirements of a supplier on an SCA Project and would abide by all SCA
procedures and requirements including furnishing only materials acceptable and approved by SCA
for us (sic) at public schools.” See Bajro Aff’d ¶ 33.
14. Again, Defendants are treated as a whole- there are no specific allegations regarding
which individual Defendant made the above representations, or when, by which means of
communication, etc. As cited in Defendants’ moving papers, “the circumstances constituting the
wrong (on a fraud claim) shall be stated in detail”. See P.T. Bank Cent. Asia v. ABN AMRO Bank
N.V., 301 A.D.2d 373, 376 [1st Dept. 2003] citing CPLR 3016(b).
15. Accordingly, Plaintiff’s pleading and its opposition papers fall woefully short of
meeting the heightening pleading requirement to bring its fraud claim against each individual
defendant.
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CONCLUSION
16. The foregoing arguments and the papers submitted demonstrate that Plaintiff is not
entitled to recover on its First Cause of Action, as there are no specifically documented requirement
in the parties’ Agreement that National Door must use a specific door manufacturer. Plaintiff’s
Second and Third Causes of Action against all Defendants individually should not be allowed to
stand because they are based on speculation and unfounded allegations, and Plaintiff does not
make any specifically allegations against any individual defendant, but rather treats them a whole
to paint broad conclusory allegations against them. Accordingly, it is respectfully submitted that
this Court must dismiss the lawsuit in its entirety against Defendants.
WHEREFORE, it is respectfully requested that this Court issue an order granting
Defendants’ motion to dismiss, and for such other or further relief as this Court deems just,
proper, and equitable.
Dated: April 4, 2024
Goshen, New York
__/s/ William Fowlkes______________
M. CABRERA & ASSOCIATES, PC
Attorneys for Defendants National Door &
Hardware Inc., Mario Gonzalez and Mark
Molinuevo
By: William Fowlkes, Esq.
2002 Route 17M, Suite 12
Goshen, NY 10924
Telephone: (845) 531-5474
To: Michael D. Ganz, Esq.
KAUFMAN DOLOWICH LLP
Attorneys for Plaintiff
135 Crossways Park Drive, Suite 201
Woodbury, NY 11797
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Index # 650218/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
======================================================================
ARMY CONSTRUCTION LLC,
Plaintiff,
-against-
NATIONAL DOOR & HARDWARE INC., MARIO GONZALEZ, MARTIN BLUM, MARK
MOLINUEVO, and NELSON A. ALMONTE,
Defendants.
----------------------------------------------------------------------------------------------X
DEFENDANT’S REPLY AFFIRMATION
_______/s/ William Fowlkes_____
William Fowlkes, Esq.
M. Cabrera & Associates, PC
Attorneys for Defendants National Door & Hardware Inc., Mario Gonzalez and Mark Molinuevo
2002 Route 17M, Suite 12
Goshen, NY 10924
845-531-5474
Fax 845-230-6645
wfowlkes@mcablaw.com
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Preview
FILED: NEW YORK COUNTY CLERK 04/04/2024 04:41 PM INDEX NO. 650218/2024 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 04/04/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ____________________________________________ ARMY CONSTRUCTION LLC, ) Index No.: 650218/2024 ) Plaintiff, ) ) REPLY AFFIRMATION -against- ) ) NATIONAL DOOR & HARDWARE INC., MARIO ) Justice Assigned: Hon. Lyle E. GONZALEZ, MARTIN BLUM, MARK ) Frank, J.S.C. MOLINUEVO, and NELSON A. ALMONTE, ) ) Defendants. ) WILLIAM Y. FOWLKES, ESQ., an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the following to be true under the penalties of perjury and upon information and belief: 1. I am associated with the law firm of M. CABRERA & ASSOCIATES, P.C., the attorneys representing defendants NATIONAL DOOR & HARDWARE INC. (“National Door”), MARIO GONZALEZ (“Gonzalez”) and MARK MOLINUEVO (collectively “Defendants”), in the above-captioned matter. I have full knowledge of the defenses of the defendant. As such, I am fully familiar with the facts and circumstances herein. The source of Your Affirmant’s information and the grounds for this belief are the law office files maintained for the defense of this action. 2. I submit this Affirmation in Reply to Plaintiff ARMY CONSTRUCTION LLC’s (hereinafter “Plaintiff”) opposition to Defendants’ Motion to Dismiss Plaintiff’s Complaint pursuant to CPLR 3211(a)(1) and (7), returnable on April 5, 2024. 1 of 6 FILED: NEW YORK COUNTY CLERK 04/04/2024 04:41 PM INDEX NO. 650218/2024 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 04/04/2024 3. Defendant’s motion to dismiss should be granted based upon the documentary evidence and because Plaintiff has failed to state a cause of action regarding its torturous interference with business relationship and fraud claims. 4. Plaintiff sets forth as its opposition the Affidavit of Abdul Bajro, President of Plaintiff and the Affirmation and Memorandum of Law of Plaintiff’s attorney Michael D. Ganz, Esq. A. Plaintiff’s First Cause of Action- Breach of Contract 5. Mr. Bajro attaches as “Exhibit 2” to his Affidavit a copy of the subject Agreement dated July 17, 2023, for the purchase of doors and related hardware, but which does not specify a particular manufacturer of the doors or hardware. Mr. Bajro references plan and specification numbers in the Agreement. 6. Mr. Bajro next attaches as “Exhibit 3” to his Affidavit purported “SCA Specified Requirements”, and attests “The Court is advised that Manufacturer C. “Ceco Door Products Div. Milan TN 38353” (“Ceco”) is one of the seven (7) SCA-approved Door manufacturers.” See Bajro Aff’d ¶ 9. However, Plaintiff fails to submit an Affidavit from a representative of the SCA who can attest to its internal requirements regarding specified manufacturers, or who can provide a foundation for the purported “SCA Specified Requirements” document attached to the Affidavit of Plaintiff’s representative. 7. The purported “SCA Specified Requirements” is dated “03/28/22”, and without testimonial evidence from an SCA representative, there is no way of knowing whether these alleged requirements were in effect at the time the subject Agreement was entered into in July of 2023. Furthermore, page 5 of this document merely lists seven manufacturers, including Ceco, under the heading “2.01 MANUFACTURERS”. There is no indication that this is a list of 2 of 6 FILED: NEW YORK COUNTY CLERK 04/04/2024 04:41 PM INDEX NO. 650218/2024 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 04/04/2024 required manufacturers. Furthermore, this document is not signed by any representative of National Door and is not specifically referenced in the subject Agreement. 8. Mr. Bajro next cites an email submission made by a representative of National Door in January of 2023 which included “Ceco Door” mentioned thereon, and architectural plans which mention same. See Exhibits 5-6 to Barjo Affidavit. Mr. Bajro states in conclusory fashion, “Clearly National Door was aware of the SCA Door manufacturer requirements, including those in its Quotes/Agreements and submitted CECO to Army from the approved list of Door Manufacturers”. However, it is not clear that National Door was required of purported SCA requirements simply by an email submission or architectural plans which contains the words “Ceco Door”, but which does not give reference to knowledge or any alleged requirements. To remind the Court, Plaintiff fails to include the Affidavit of an SCA representative who can testify to its own manufacturer requirements. 9. Mr. Bajro’s Affidavit contains additional hearsay testimony in that he attests that HMFExpress doors were “in fact specifically rejected by the SCA for use at the Project.” See Bajro Aff’d ¶ 16. Mr. Bajro also claims without any substantiation that HMFExpress doors were “unsafe”. See Bajro Aff’d ¶ 17. 10. The documentary evidence demonstrates that there was not any specifically documented requirement in the Agreement that Ceco Door must be used. Accordingly, Plaintiff’s breach of contract cause of action must be dismissed as it cannot demonstrate that National Door breached its obligations. B. Plaintiff’s Second and Third Causes of Action- Tortious Interference with Business Relations and Fraud 11. As argued in Defendants’ moving papers, Plaintiff’s allegations amount to a simple, straightforward breach of contract claim- that National Door allegedly supplied doors by an 3 of 6 FILED: NEW YORK COUNTY CLERK 04/04/2024 04:41 PM INDEX NO. 650218/2024 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 04/04/2024 unauthorized manufacturer in violation of the parties’ Agreement. Plaintiff is attempting to improperly use this breach of contract claim to shoehorn additional tort claims against the individual defendants. 12. Regarding the tortious interference claim, there are simply no specific allegations that any of the individual defendants acted for the sole purpose of harming Plaintiff’s business relationship with the SCA. Mr. Bajro attests in broad, conclusory fashion, “The Defendants were aware that Army had an existing business relationship with SCA, including the Prime Contract and of Army’s desire to obtain further work from SCA. See Bajro Aff’d ¶ 31. Plaintiff is again treating the individual Defendants as a whole. There are no specific allegations in its opposition regarding which individual defendant was aware of Plaintiff’s business relationship with the SCA and which defendant used improper or illegal means to interference with that business relationship, etc. 13. Regarding its fraud claim, Mr. Bajro attests, “Prior to Army entering into the National Door Agreement, the Defendants had represented to Army that they had knowledge concerning the requirements of a supplier on an SCA Project and would abide by all SCA procedures and requirements including furnishing only materials acceptable and approved by SCA for us (sic) at public schools.” See Bajro Aff’d ¶ 33. 14. Again, Defendants are treated as a whole- there are no specific allegations regarding which individual Defendant made the above representations, or when, by which means of communication, etc. As cited in Defendants’ moving papers, “the circumstances constituting the wrong (on a fraud claim) shall be stated in detail”. See P.T. Bank Cent. Asia v. ABN AMRO Bank N.V., 301 A.D.2d 373, 376 [1st Dept. 2003] citing CPLR 3016(b). 15. Accordingly, Plaintiff’s pleading and its opposition papers fall woefully short of meeting the heightening pleading requirement to bring its fraud claim against each individual defendant. 4 of 6 FILED: NEW YORK COUNTY CLERK 04/04/2024 04:41 PM INDEX NO. 650218/2024 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 04/04/2024 CONCLUSION 16. The foregoing arguments and the papers submitted demonstrate that Plaintiff is not entitled to recover on its First Cause of Action, as there are no specifically documented requirement in the parties’ Agreement that National Door must use a specific door manufacturer. Plaintiff’s Second and Third Causes of Action against all Defendants individually should not be allowed to stand because they are based on speculation and unfounded allegations, and Plaintiff does not make any specifically allegations against any individual defendant, but rather treats them a whole to paint broad conclusory allegations against them. Accordingly, it is respectfully submitted that this Court must dismiss the lawsuit in its entirety against Defendants. WHEREFORE, it is respectfully requested that this Court issue an order granting Defendants’ motion to dismiss, and for such other or further relief as this Court deems just, proper, and equitable. Dated: April 4, 2024 Goshen, New York __/s/ William Fowlkes______________ M. CABRERA & ASSOCIATES, PC Attorneys for Defendants National Door & Hardware Inc., Mario Gonzalez and Mark Molinuevo By: William Fowlkes, Esq. 2002 Route 17M, Suite 12 Goshen, NY 10924 Telephone: (845) 531-5474 To: Michael D. Ganz, Esq. KAUFMAN DOLOWICH LLP Attorneys for Plaintiff 135 Crossways Park Drive, Suite 201 Woodbury, NY 11797 5 of 6 FILED: NEW YORK COUNTY CLERK 04/04/2024 04:41 PM INDEX NO. 650218/2024 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 04/04/2024 Index # 650218/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ====================================================================== ARMY CONSTRUCTION LLC, Plaintiff, -against- NATIONAL DOOR & HARDWARE INC., MARIO GONZALEZ, MARTIN BLUM, MARK MOLINUEVO, and NELSON A. ALMONTE, Defendants. ----------------------------------------------------------------------------------------------X DEFENDANT’S REPLY AFFIRMATION _______/s/ William Fowlkes_____ William Fowlkes, Esq. M. Cabrera & Associates, PC Attorneys for Defendants National Door & Hardware Inc., Mario Gonzalez and Mark Molinuevo 2002 Route 17M, Suite 12 Goshen, NY 10924 845-531-5474 Fax 845-230-6645 wfowlkes@mcablaw.com 6 of 6