Motion for Writ in Be A Good Neighbor Llc v. Torres Millwork & Construction Llc, Mauro Torres, David Leslie| Trellis.Law

On February 25, 2022 a Exhibit,Appendix was filed involving a dispute between Be A Good Neighbor Llc, and David Leslie, Mauro Torres, Torres Millwork & Construction Llc, for Commercial - Contract in the District Court of New York County.

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FILED: NEW YORK COUNTY CLERK 04/11/2024
02/25/2022 12:18
02:37 PM INDEX NO. 650901/2022
NYSCEF DOC. NO. 97
2 RECEIVED NYSCEF: 04/11/2024
02/25/2022

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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BE A GOOD NEIGHBOR LLC, :
:
Plaintiff, : Index No.:
:
-against- : VERIFIED COMPLAINT
:
TORRES MILLWORK & CONSTRUCTION LLC, :
MAURO TORRES, and DAVID LESLIE, :
:
Defendants. :
------------------------------------------------------------------- X
Plaintiff, Be A Good Neighbor LLC (“Plaintiff” or “BAGN”), by and through its

attorneys, Rottenberg Lipman Rich, P.C., for its Verified Complaint against Torres Millwork &

Construction LLC (“TMC”), Mauro Torres (“Mauro”) and David Leslie (“David,” together with

Mauro, the “Individual Defendants,” and the Individual Defendants together with TMC, the

“Defendants”), alleges as follows:

Preliminary Statement

1. This action arises out of (a) TMC’s failure to complete the work that

BAGN hired it to perform in connection with a construction project (the “Project”) to build a

commissary kitchen and dining room for use at a restaurant BAGN intends to open at space that

it leased located at 189 Avenue A, New York, New York (the “Premises”), (b) defective work

performed by TMC, (c) TMC’s use of the Premises for other projects without BAGN’s

permission, and (d) the Defendants’ numerous misrepresentations that induced BAGN to enter

into an agreement with TMC and make progress payments to TMC.

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The Parties

2. BAGN is a limited liability company organized and existing pursuant to

the laws of the State of New York, which maintains its principal place of business at 189 Avenue

A, New York, New York.

3. Upon information and belief, TMC is a limited liability company

organized and existing pursuant to the laws of the State of New York, which maintains its

principal place of business at 72-30 66th Place, Ridgewood, New York 11385.

4. Upon information and belief, Mauro is an individual who resides in the

State of New York, and who is an owner and/or officer of TMC.

5. Upon information and belief, David is an individual who resides in the

State of New York, and who is an owner and/or officer of TMC.

The Initial Contract with SmartDesign LLC

6. In early 2020, BAGN began planning the Project.

7. The Project was initially managed by SmartDesign LLC (“SmartDesign”),

a licensed design and construction firm, which created the necessary plans, submitted them to

New York City agencies, and obtained necessary approvals.

8. SmartDesign, however, was unable to begin construction due to the onset

of the COVID-19 pandemic and the related government mandated shutdowns.

9. When construction firms were permitted to return to work, SmartDesign

notified BAGN that it would not be able to complete the project on time and on budget.

10. Because SmartDesign knew that closing the permits and opening new ones

would be very costly and time consuming, it offered to keep the permits in place for a reasonable

amount of time while BAGN sought out a replacement contractor.

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BAGN Contracts with TMC

11. Accordingly, on November 17, 2020, BAGN entered into an agreement

(the “Contract”) with TMC to complete the project for a sum of $254,572.26 (the “Contract

Price”).

12. At that time, TMC provided BAGN with an estimate that it would take

approximately 12-16 weeks to complete the Project.

13. At the time the parties signed the Contract, David and Mauro represented

to BAGN that TMC was licensed, insured, and able to complete all tasks required as a general

contractor including plumbing, electrical, construction, recommendations on additional sub-

contractors, finishing material selections, etc.

14. Upon signing the Contract, BAGN put TMC in touch with SmartDesign,

and Torres indicated that it would immediately proceed to transfer to TMC’s name the permits

and insurance coverage that SmartDesign had procured.

15. On March 3, 2021 and April 7, 2021, BAGN and TMC agreed to change

orders (the “Change Orders”) that, together, added $32,100 to the Contract Price.

16. To date, BAGN has paid TMC a total of $257,100, which is

approximately 90% of the Contract Price (including the Change Orders).

17. Pursuant to the Contract, TMC had numerous obligations, including, but

not limited to, management and supervision, weekly site meetings, maintaining general liability

insurance, coordinating all finish materials and samples, coordinating for controlled inspections

as required, coordinating all trades for inspections and sign-offs, coordinating all trade permits,

daily cleaning of the job site during construction, coordinating final professional cleaning,

carting of garbage post demolition and during construction, accepting deliveries, and verifying

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and carting packaging materials such as select finish materials, decorative items/artwork,

furnishing, and signage.

18. Pursuant to the Contract, the prevailing party in any litigation between

BAGN and TMC is entitled to recover its costs and attorney’s fees.

TMC Failed to Timely Transfer the Licenses and Was Not Registered with the DOB

19. Much to BAGN’s surprise, in February 2021, SmartDesign contacted

BAGN and inquired when it intended to transfer the permits and insurance.

20. BAGN immediately asked TMC about the status of the permits and

insurance.

21. David, on behalf of TMC, responded and stated that TMC had submitted

all required paperwork in November 2020.

22. When asked to provide proof of those submissions, TMC could not

provide any.

23. On February 5, 2021, TMC asked BAGN to sign an illegible picture of a

document taken by a phone that TMC claimed was a permit transfer letter but that could not even

be read, let alone filed or used.

24. That same day, David, on behalf of TMC, asked BAGN to sign a draft

permit transfer letter on behalf of Jeffrey Weinberg, who is affiliated with 189 Avenue A LLC,

the building owner.

25. This draft permit transfer letter included names of individuals, not entities,

and failed to identify each person’s role (owner, applicant, contractor, special inspector, and

progress inspector), as required by the DOB.

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26. When BAGN notified David of these defects and informed TMC that it

lacked authority to sign on behalf of Jeffrey Weinberg, David told BAGN to sign Mr.

Weinberg’s name anyway and to falsely identify BAGN as the building owner.

27. BAGN refused to do so and instead asked TMC to correct the errors and

provide a new draft permit transfer letter.

28. On February 16, 2021, TMC provided BAGN with a new draft permit

transfer letter that incorrectly listed Ori Kushnir, an owner of BAGN, as the authorized signatory

of 189 Avenue A LLC (the entity that owns the Property).

29. Since Mr. Kushnir, who has no employment or ownership relationship

with 189 Avenue A LLC and is not authorized to sign anything on its behalf, was asked to sign

the permit transfer letter on behalf of 189 Avenue A LLC, BAGN could not sign it and refused to

do so.

30. At that point, TMC contacted SmartDesign’s expeditor KX Consulting,

which was able to produce a valid transfer letter on March 10, 2021.

31. BAGN was again surprised when this transfer letter named a third party,

Christina Oden of OMD I Corp. (“OMD”) as the contractor, and not TMC.

32. In May 2021, KX Consulting then forwarded BAGN an email showing

that, contrary to its representation, TMC was in fact not appropriately registered with the New

York City Department of Buildings as required, and that was the reason that OMD obtained

licenses on TMC’s behalf.

33. The same email shows that David was aware of the need for a special MH

inspector since March 2021, but did not secure one and did not tell BAGN that one was needed,

causing further delays when BAGN discovered this issue two months later.

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34. At that time, Mauro, on behalf of TMC, told BAGN that TMC was

transferring all licenses.

35. In fact, contrary to Mauro’s representation, TMC did not transfer the

plumbing license at that time or apply for a new mechanical permit, both of which were required

to move forward with the Project.

TMC’s Work is Defective

36. Prior to license transfers, TMC began work it was permitted to complete

without them.

37. In particular, TMC installed a ceiling and proceeded to cover it with

custom made decorative tiles that BAGN had acquired, but placed them in the opposite direction

from what was clearly shown in the design documents and orally confirmed by BAGN.

38. Since the tiles were glued to the ceiling, TMC said that there was no way

to reorient them.

39. Because ordering new tiles would take months to obtain at great expense,

BAGN begrudgingly agreed to continue with the incorrect placement.

40. TMC also highly recommended a flooring contractor, StonHard, which

installed flooring that StonHard itself admitted was highly defective and that could not be

removed in any reasonable way.

41. Nonetheless, a TMC representative inspected the floor after installation

and proclaimed, in writing, “The floors look fantastic!”, which in essence foreclosed BAGN’s

ability to seek a refund from StonHard for its defective work.

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42. TMC also recommended Startec Mechanical LLC (“Startec”), an HVAC

contractor, which installed its equipment incorrectly and without the proper permits and

authorizations.

43. TMC also performed and/or approved of numerous other defective work

that caused numerous further delays and additional costs.

TMC Finally Obtains Permits Eight Months Into the Job,
Then Hires an Unlicensed Plumber, Causing Further Delay

44. On June 3, 2021, SmartDesign obtained approval of updated plumbing and

mechanical plans, following which TMC was supposed to finally obtain plumbing and

mechanical permits and contract a mechanical inspection firm.

45. The plumber TMC hired to do the job, however, turned out to have had an

expired license.

46. During the first week of June 2021, Mauro promised that the plumbing

license would be restored and work would begin in “a few days,” but two months later the

plumber still did not pull a plumbing permit or respond to BAGN’s requests and was, therefore,

replaced.

47. Because the plumbing work needed to remain exposed to allow for

inspection, almost no work could be done prior to obtaining the plumbing license.

48. BAGN also discovered that TMC’s HVAC contractor was not licensed to

obtain a permit and that TMC also failed to contract a special inspections agent as required by

law.

49. At this point, BAGN took over permit and license management from TMC

and asked KX Consulting to obtain permits as needed.

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50. In early August, when the new plumber and HVAC company finally

obtained all required permits, BAGN was anticipating further delays due to required inspections

of the commissary kitchen by various city agencies, and was concerned that there was much

work remaining to get to the point where such inspections could be scheduled.

51. BAGN, therefore, asked TMC to focus on completing the kitchen before

moving to work on the dining room.

52. TMC agreed, and on August 2, 2021, told BAGN that the kitchen would

be ready in three weeks.

53. Instead of working on the kitchen and bathroom, however, TMC utilized

BAGN’s space without BAGN’s permission and without contributing to BAGN’s rent and utility

payments to build cabinets and other millwork for other clients, including, but not limited to,

Unapologetic Hospitality, LLC for a restaurant named “Semma”.

54. TMC’s unauthorized use of BAGN’s space for work on other projects

exposed BAGN to claims and liability that would likely not be covered by BAGN’s insurance

policy, which likely contained exclusions for unauthorized work.

55. While TMC also constructed a small amount of millwork for BAGN, the

work product did not conform to the specifications and renderings provided to TMC and was,

therefore, partially discarded, and the remaining millwork still needs to be removed and redone.

56. In addition, the special mechanical inspection for the HVAC installation

that BAGN coordinated once TMC confirmed they were ready for it failed and was never

rescheduled.

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Hurricane Ida Causes Damage and Exposes Other Contractual Breaches

57. In September 2011, Hurricane Ida caused extensive flooding in the dining

room.

58. TMC rushed to the scene to rescue the millwork it built in BAGN’s space

without permission, but took no other remedial action to reduce the impact of the flooding on

BAGN’s space such as draining the ceiling where water was pooling.

59. TMC then refused to allow a professional mold remediation contractor

hired by the property owner to enter the space for over a month.

60. Once the ceiling was removed to allow for mold remediation, BAGN

discovered that Startec, the HVAC subcontractor that TMC recommended, had installed the air

conditioning pipes above it incorrectly such that they would break after a relatively short time.

61. Because TMC closed the ceiling before BAGN could observe the state of

the piping, BAGN only learned about it due to the flood.

62. Startec offered to come and correct the issue while the ceiling was open,

but TMC never coordinated with it despite repeated requests by BAGN.

63. BAGN further notified TMC that despite the flooding, TMC remained

responsible for completing the ceiling and other water and mold damaged areas as this work was

not completed and signed-off on, was covering up incorrect air conditioner installation, and as it

was up to TMC to obtain builders’ insurance covering work and material while in construction.

64. After mold treatment was complete and BAGN could enter the space

again, BAGN asked Ergo Development and Management LLC (“Ergo”), a contractor for the

installation of special-purpose environmental protection devices (“Smoke Zapper”) and fire

suppression systems, to visit the site in preparation of fire-suppression system installation and

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inspection and to list any open issues for obtaining city permits for environmental protection and

fire suppression.

65. Ergo’s representative, an experienced contractor with a specialty in

restaurant kitchens, was shocked at what he found: nearly every detail of the kitchen’s

construction was illegal, undesirable, or subpar, with many details preventing BAGN from

passing inspection, ranging from incorrect drainage to emergency electrical switches installed at

incredible and illegal heights, corrosive materials used on gas lines, and other issues that should

be obvious to any reasonable layman, let alone a professional contractor.

66. Although BAGN provided TMC with a punch list of items that required

correction and completion and repeatedly asked TMC to complete the required work, TMC,

which had already collected 90% of the Contract Price (as increased by the Change Orders),

instead abandoned the Project.

67. For months, David and Mauro insisted that everything is ready and

functional, and that their work is done.

68. In February 2022, TMC finally admitted that all of the items of BAGN’s

punch list “needs attention,” but refused to complete its obligations without substantial additional

payments above and beyond those to which TMC would be entitled under the Contract and

Change Orders.

CAUSES OF ACTION

AS AND FOR A FIRST CAUSE OF ACTION
(BREACH OF CONTRACT AGAINST TMC)
69. BAGN repeats and realleges each of the allegations in the paragraphs

above as if set forth at length herein.

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70. BAGN entered into the Contract and Change Orders with TMC, pursuant

to which TMC was required to perform certain construction work on the Premises.

71. BAGN complied with its obligations under the Contract and Change

Orders, including, but not limited to, by paying TMC $257,100, approximately 90% of the total

Contract Price (as increased by the Change Orders).

72. TMC, however, failed to complete the work as required under the Contract

and Change Orders.

73. Much of the work that TMC did complete, moreover, was defective.

74. By reason of the foregoing, BAGN has been damaged in many ways,

including by having to hire a replacement contractor at a higher cost to complete the work that

TMC failed to perform, paying carrying costs on its lease, and losing the opportunity to make

sales at a restaurant that was supposed to be able to open in early 2021.

AS AND FOR A SECOND CAUSE OF ACTION
(QUANTUM MERUIT AGAINST TMC)

75. BAGN repeats and realleges each of the allegations in the paragraphs

above as if set forth at length herein.

76. At the request of TMC, BAGN paid TMC $257,100.

77. TMC knew that BAGN was paying it $257,100 and accepted such

payment.

78. TMC also knew that BAGN expected it to perform construction work on

the Premises pursuant to the specifications that BAGN provided in exchange for such payments.

79. TMC failed to complete the construction work, and the work that it did

perform was defective.

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80. By reason of the foregoing, BAGN has been damaged in many ways,

including by needing to hire a replacement contractor at a higher cost to complete the work that

TMC failed to perform, paying carrying costs on its lease, and losing the opportunity to make

sales at a restaurant that was supposed to be able to open in early 2021.

AS AND FOR A THIRD CAUSE OF ACTION
(UNJUST ENRICHMENT AGAINST TMC)

81. BAGN repeats and realleges each of the allegations in the paragraphs

above as if set forth at length herein.

82. At the request of TMC, BAGN paid TMC $257,100.

83. TMC knew that BAGN was paying it $257,100 and accepted such

payment.

84. TMC also knew that BAGN expected it to perform construction work on

the Premises pursuant to the specifications that BAGN provided in exchange for such payments.

85. TMC failed to complete the construction work, and the work that it did

perform was defective.

86. TMC also wrongfully used BAGN’s space to construct millwork for other

clients without permission from TMC or paying TMC for the use thereof.

87. TMC, therefore, has been unjustly enriched at BAGN’s expense.

88. By reason of the foregoing, BAGN has been damaged in many ways,

including by needing to hire a replacement contractor at a higher cost to complete the work that

TMC failed to perform, paying carrying costs on its lease, and losing the opportunity to make

sales at a restaurant that was supposed to be able to open in early 2021.

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AS AND FOR A FOURTH CAUSE OF ACTION
(TRESPASS AGAINST TMC)

89. BAGN repeats and realleges each of the allegations in the paragraphs

above as if set forth at length herein.

90. TMC utilized BAGN’s space to construct millwork for other clients,

including, but not limited to, Unapologetic Hospitality, without BAGN’s permission.

91. TMC, therefore, is liable to BAGN for the value of the space that it used

without BAGN’s permission.

AS AND FOR A FIFTH CAUSE OF ACTION
(FRAUD AGAINST ALL DEFENDANTS)

92. BAGN repeats and realleges each of the allegations in the paragraphs

above as if set forth at length herein.

93. At the time of the Contract, David and Mauro represented to BAGN that

TMC was licensed, insured, and able to complete all tasks required as a general contractor

including plumbing, electrical, construction, recommendations on additional sub-contractors,

finishing material selections, etc.

94. This representation was false.

95. David and Mauro knew that this representation was false, but stated it

anyway in order to induce BAGN to enter into the Contract with TMC.

96. Then, in November 2020, David, on behalf of TMC, stated that TMC had

submitted all required paperwork in November 2020.

97. David knew that this representation was false but stated it anyway in order

to induce BAGN to continue with the Contract and to make payments to TMC.

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98. Next, in March 2021, Mauro told BAGN that TMC was transferring all

licenses at that time.

99. In fact, TMC was not transferring the plumbing license at that time.

100. Mauro knew that this representation was false but stated it anyway in

order to induce BAGN to continue with the Contract and to make payments to TMC.

101. As a result of David and Mauro’s frauds, BAGN entered into the Contract,

made payments to TMC to which TMC was not entitled, and its project was delayed by over six

months.

102. By reason of the foregoing, BAGN has been damaged in many ways,

including by needing to hire a replacement contractor at a higher cost to complete the work that

TMC failed to perform, paying carrying costs on its lease, and losing the opportunity to make

sales at a restaurant that was supposed to be able to open in early 2021.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully requests judgment against Defendants,

jointly and severally, as follows:

1. On the first cause of action, damages, for, among other things, the cost of

completing the Project, restitution, carrying costs, lost opportunity costs, and attorney’s fees and

costs, in an amount to be determined at trial, but in any event in excess of $250,000.

2. On the second cause of action, damages, for, among other things, the cost

of completing the Project, restitution, carrying costs, lost opportunity costs, and attorney’s fees

and costs in an amount to be determined at trial, but in any event in excess of $250,000.

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3. On the third cause of action, damages, for, among other things, the cost of

completing the Project, restitution, carrying costs, lost opportunity costs, and attorney’s fees and

costs in an amount to be determined at trial, but in any event in excess of $250,000.

4. On the fourth cause of action, damages for the value of the space that

TMC used without BAGN’s permission in an amount to be determined at trial and attorney’s

fees and costs.

5. On the fifth cause of action, damages for, among other things, the cost of

completing the Project, restitution, carrying costs, lost opportunity costs, and attorney’s fees and

costs, and punitive damages in an amount to be determined at trial, but in any event in excess of

$250,000.

Dated: February 25, 2022
New York, New York

ROTTENBERG LIPMAN RICH, P.C.

By: ____________________________
Harry W. Lipman, Esq.
C. Zachary Rosenberg, Esq.
The Helmsley Building
230 Park Avenue, 18th Floor
New York, New York 10169
Tel. (212) 661-3080

Attorneys for Plaintiff

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Case Info

Judge

Nancy M Track Judge’s New Case

Case No.

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Document Filed Date

April 11, 2024

Case Filing Date

February 25, 2022

County

Parties

Be A Good Neighbor LLC Plaintiff
CHENG, MENG Attorney for the Defendant
David Leslie Defendant
KREDER, JENNIFER ANGLIM Attorney for the Plaintiff
Mauro Torres Defendant
ROSENBERG, C. ZACHARY Attorney for the Plaintiff
Torres Millwork & Construction LLC Defendant
CHASE ZACHARY Attorney
HARRY LIPMAN Attorneys for Plaintiffs
JOHN MCMAHON Attorneys for Plaintiffs
ROBERT PALUMBO Attorney
MICHAEL BLUMENTHAL Attorney
JEROLD FEUERSTEIN Attorney
ZACHARY ROSENBERG Attorney

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Exhibit,Appendix: Be A Good Neighbor Llc v. Torres Millwork & Construction Llc, Mauro Torres, David Leslie

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