Motion for Writ in Standard Environmental Llc v. Winson Construction Inc.| Trellis.Law

On April 17, 2024 a Complaint,Petition was filed involving a dispute between Standard Environmental Llc, and Winson Construction Inc., for Special Proceedings - CPLR Article 75 in the District Court of Kings County.

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FILED: KINGS COUNTY CLERK 04/17/2024 12:13 PM INDEX NO. 511003/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/17/2024

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
----------------------------------------------------------------------X
In the Matter of the Arbitration between

Index No.
STANDARD ENVIRONMENTAL LLC,
Petitioner, NOTICE OF PETITION

– and –

WINSON CONSTRUCTION INC.,
Respondent.

----------------------------------------------------------------------X

Upon the Petition of STANDARD ENVIRONMENTAL LLC, verified on the 12th day of

April, 2024, Petitioner will appear before the Kings County Supreme Court, at the Courthouse, at

360 Adams Street, Brooklyn, New York, on the 15th day of May, 2024, at 9:30 a.m., to seek a

Judgment and Order, pursuant to CPLR §7510 and Lien Law §19(5), stating that:

1. Pursuant to CPLR §7510, confirming an Arbitration Award, granted to Petitioner

on February 27, 2024, upon Petitioner’s application made within one year after its delivery to

Petitioner; and

2. Pursuant to Lien Law §19(5), discharging and granting a Judgment showing a final

determination pertaining to Respondent’s Notices of Mechanic’s Liens filed against certain

properties in the State of New York, Kings County, in favor of the Owner(s) of such real property

located in the State of New York, Kings County, against which the subject Notices of Mechanic’s

Liens were claimed.

Answering papers, if any, are to be served upon the undersigned no later than five (5) days

before the return date herein.

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Dated: White Plains, New York
April 17, 2024
WELBY, BRADY & GREENBLATT, LLP

By: Andreas M. Koudellou .

Andreas M. Koudellou
Attorneys for Petitioner
Standard Environmental LLC
11 Martine Avenue, 15th Floor
White Plains, New York 10606
(914) 607-6487
akoudellou@wbgllp.com

TO: Winson Construction Inc.
Attn: Frank Byon
Respondent
47-33 157th Street
Flushing, New York 11355

Winson Construction Inc.
Attn: Frank Byon
Respondent
47-17 189th Street
Flushing, New York 11358

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
-------------------------------------------------------------------------x
In the Matter of the Arbitration between
Index No.:
STANDARD ENVIRONMENTAL LLC,
Petitioner, Date Purchased:
– and –
VERIFIED PETITION
WINSON CONSTRUCTION INC.,
Respondent.
-------------------------------------------------------------------------x

Petitioner, STANDARD ENVIRONMENTAL LLC, respectfully shows and alleges as

follows:

1. At all times hereinafter mentioned, the Petitioner, Standard Environmental LLC

(“Petitioner” or “Standard”) was and is a domestic limited liability company, duly organized and

existing under and by virtue of the laws of the State of New York, with a place of business

located at 1199 Park Avenue, 8D, New York, New York 10128.

2. At all times hereinafter mentioned, the Respondent, Winson Construction Inc.

(“Respondent” or “Winson”), was and still is a domestic business corporation, duly organized

and existing under and by virtue of the laws of the State of New York, with place(s) of business

located at 47-33 157th Street, Flushing, New York 11355 and/or 47-17 189th Street, Flushing,

New York 11358.

A. Confirmation of Arbitration Award Pursuant to CPLR §7510

3. On or about May 11, 2022, Standard and Winson entered into two (2) separate

contracts for construction and renovation work to be performed by Winson on two construction

projects known as: [i] 519 2nd Street, Brooklyn, New York, 11215 (the “519 2nd St. Project” or

“Project No. 1”); and [ii] 88 Herkimer St., Brooklyn, New York, 11216 (the “88 Herkimer

Project” or “Project No. 2”) (collectively, the “Projects”). True and accurate copies of the

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parties’ contracts for Project No. 1 (“Contract No. 1”) and Project No. 2 (“Contract No. 2”) are

annexed hereto as Exhibits “A” and “B”, respectively; see also accompanying Affidavit of Scott

Rosenthal (“Rosenthal Aff.”) at ¶3.

4. Contract No. 1 (519 2nd St. Project), among other things, provided as follows:

§6.2 Binding Dispute Resolution

For any Claim subject to, but not resolved by, mediation pursuant
to Article 15 of AIA Document A201-2017, the method of binding
dispute resolution shall be as follows: Arbitration pursuant to
Section 15.4 of AIA Document A201-2017.

See Exhibit “A” at p. 7.

5. Contract No. 2 (88 Herkimer St. Project), among other things, provided as

follows:

§6.2 Binding Dispute Resolution

See Exhibit “B” at p. 7.

6. During the course of both Projects, and prior to Winson achieving substantial

completion of the work prescribed under either Contract No. 1 or Contract No. 2, Winson

abandoned – and, upon repeated requests by Petitioner, refused to recommence – its work on the

Projects. See Rosenthal Aff. at ¶¶ 5-7.

7. On July 21, 2023, SELLC issued a written Notice of Default and Intent to

Terminate Construction Contracts for Cause to Winson, in relation to both Projects. A true and

correct copy of the July 21, 2023 Notice of Default and Intent to Terminate Construction

Contracts for Cause is annexed hereto as Exhibit “C”. See Rosenthal Aff. at ¶8.

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8. On or about July 31, 2023, Standard met with Winson and communicated its

willingness to allow Winson to remedy its defaults (for non-performance of the Contracts) and

complete the work on the Projects as originally agreed upon. See Rosenthal Aff. at ¶9.

9. During the July 31, 2023 meeting between the parties, Winson declined the

opportunity to cure its defaults under Contract Nos. 1 and 2. Thereafter, upon Standard’s

recommendation that the parties take part in mediation to resolve all outstanding issues relating

to the Projects and Contract Nos. 1 and 2 – as prescribed by §6.2 of both Contracts – Winson

declined and affirmatively waived the contractual requirements for such pre-arbitration

mediation proceedings. See Rosenthal Aff. at ¶10.

10. On August 4, 2023, Standard sent a letter to Winson confirming the contents of

the parties’ discussions during their July 31, 2023 meeting. Included therein is a statement

memorializing “[Winson’s] decision to waive the contractual requirement of mediation as

provided for [in the] dispute resolution provisions in both contracts.” A true and correct copy of

the August 4, 2023 letter is annexed hereto as Exhibit “D”. See Rosenthal Aff. at ¶11.

11. On August 17, 2023, Standard delivered Notices of Termination to Winson, with

respect to both Projects, thereby terminating each of Contract No. 1 and Contract No. 2 for

cause. True and correct copies of Standard’s Notices of Termination with respect to the 519 2nd

St. and 88 Herkimer St. Projects are annexed hereto as Exhibits “E” and “F”, respectively. See

Rosenthal Aff. at ¶12.

12. On or about August 30, 2023, Petitioner duly filed and served the Respondent

with a Demand for Arbitration, pursuant to the terms of the “Binding Dispute Resolution”

provisions of Contract Nos. 1 and 2, respectively, and in accordance with the rules of the

American Arbitration Association. A true and correct copy of Standard’s Demand for

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Arbitration is annexed hereto as Exhibit “G”. See Rosenthal Aff. at ¶13.

13. The American Arbitration Association accepted Petitioner’s Demand for

Arbitration, and assigned “AAA Case No. 01-23-0003-8735” to the matter.

14. Despite being duly served with the Demand for Arbitration, and its receipt of all

correspondence issued by and to the American Arbitration Association in relation to AAA Case

No. 01-23-0003-9735, Respondent refused to participate the arbitration proceedings. A true and

correct copy of a September 21, 2023 email from Winson’s principal – Frank Byon – to the

American Arbitration Association’s Manager of ADR Services confirming that Winson was “not

interested in arbitration in this case” is annexed hereto as Exhibit “H”.

15. The American Arbitration Association, in accordance with its arbitration rules,

designated Dan M. Rice, Esq., as Arbitrator, and notice of the designation of the arbitrator was

duly given to both parties. A true and correct copy of the American Arbitration Association’s

designation of arbitrator letter is annexed hereto as Exhibit “I”.

16. Despite Winson’s continued refusal to participate in the arbitration proceeding,

Arbitrator Rice communicated that he would not grant Standard its requested relief by default,

and that Petitioner would need to present evidence in support of its claims during arbitration.

17. On or about February 6, 2024, an arbitration hearing was held pursuant to the

terms of Contract Nos. 1 and 2, and in accordance with the rules of the American Arbitration

Association. A copy of the December 6, 2023 letter from the American Arbitration

Association’s Manager of ADR Services, providing notice of the scheduled arbitration hearing,

is annexed hereto as Exhibit “J”. See Rosenthal Aff. at ¶14.

18. On February 27, 2024, pursuant to the rules of the American Arbitration

Association, the Arbitrator reached a decision (the “Arbitrator’s Award”) based on the proof and

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evidence submitted by the Petitioner and (i) determined that the Petitioner’s “claims are granted

to the extent of awarding $390,487.00 for breach of the contracts, plus interest from July 21,

2023, at the rate of 9% per annum to the date of this award, February 27, 2024, $21,278.87[,] for

a total amount of $411,765.87” and (ii) “reimburse[ment] [to] Claimant the sum of $19,500,

representing that portion of said [administrative] fees and [arbitrator] compensation in excess of

the apportioned cost previously incurred and paid by Claimant.” A true and correct copy of the

Arbitrator’s Award is annexed hereto as Exhibit “K”. See Rosenthal Aff. at ¶15.

19. The $390,487.00 awarded to Petitioner for breach of the contracts – without the

inclusion of accrued interest – was calculated as follows:

a. Two Hundred Seventy-Eight Thousand Eight Hundred Seventy-Five and
00/100 Dollars ($278,875.00) for breach of Contract No. 1, pertaining to
the 519 2nd St. Project; and

b. One Hundred Eleven Thousand Six Hundred Twelve and 00/100 Dollars
($111,612.00) for breach of Contract No. 2, pertaining to the 88 Herkimer
St. Project.

See Exhibit “J” at pp. 2-3.

20. In total, the Arbitrator’s Award duly entered an award in favor of Petitioner for

the amount of Four Hundred Thirty-One Thousand Two Hundred Sixty-Five and 87/100 Dollars

($431,265.87) dollars (the “Award”), comprised of $411,765.87 in damages for breach of

contract and $19,500.00 in reimbursement for administrative fees and arbitrator compensation

paid by Standard on behalf of Winson.

21. A copy of the aforesaid Award was delivered to Standard and Winson via email

by the American Arbitration Association on or about February 27, 2024, pursuant to

CPLR §7507 and Rule 40 of the American Arbitration Association Construction Industry Rules.

Copies of this correspondence and its enclosures are annexed hereto as Exhibit “L”.

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22. Standard served said Award on Winson via email and certified mail, return receipt

requested, pursuant to Rule 40 of the American Arbitration Association Construction Industry

Rules. Copies of this correspondence and its enclosures are annexed hereto as Exhibit “M”.

23. Despite being served with said Award with Demand for Payment by Petitioner,

Respondent, to date, has not satisfied the Award.

24. Pursuant to CPLR §7510, “[t]he court shall confirm an award upon application of

a party made within one year after its delivery to him, unless the award is vacated or modified

upon a ground specified in section 7511.” See CPLR §7510.

25. This Petition is brought within one year after the aforesaid delivery of the Award

to Standard, and the Award has not been vacated or modified upon any ground specified in

CPLR §7511.

B. Winson’s Notices of Mechanic’s Liens Against the 519 2nd St.
and 88 Herkimer St. Projects are Void and Must be Discharged
Pursuant to New York Lien Law §19(5)

26. Standard repeats, reiterates and realleges each and every allegation contained in

paragraphs “1” through “24” above, with the same force and effect as though more fully set forth

at length herein.

27. In furtherance of the 519 2nd St. and 88 Herkimer St. Projects, Standard retained

Winson to serve as general contractor and furnish labor, materials and equipment necessary for

the construction of both Projects. See Exhibits “A” and “B”, respectively.

i. Lien No. 1 – 519 2nd St. Project

28. On or about August 29, 2023, Winson filed a Mechanic’s Lien against the Project

No. 1 property located 519 2nd Street, Brooklyn, New York 11215, dated August 29, 2023, in the

amount of Sixty-Two Thousand Five Hundred Fifty and 00/100 Dollars ($62,550.00), against

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Finesource LLC, as Owner, and Standard, as contractor, in the Office of the Kings County Clerk

(“Lien No. 1”). A true and correct copy of Lien No. 1 is annexed hereto as Exhibit “N”.

29. Irrespective of the veracity of the claims made in Winson’s Lien No. 1 – which

Standard disputes in light of Winson having been adjudicated to have breached Contract No. 1 –

the $62,550.00 value of Winson’s Lien is exceeded by the $278,875.00 Arbitrator Rice

determined to be owed by Winson to Standard as damages for breach of Contract No. 1,

pertaining to the 519 2nd St. Project. See Exhibit “J”; see also ¶18 supra.

ii. Lien No. 2 – 88 Herkimer St. Project

30. On or about August 22, 2023, Winson filed a Mechanic’s Lien against the Project

No. 2 property located 88 Herkimer Street, Brooklyn, New York 11216, dated August 22, 2023,

in the amount of Seventeen Thousand Three Hundred Seventy-Five and 00/100 Dollars

($17,375.00), against Herkimer Properties LLC, as Owner, and Standard, as contractor, in the

Office of the Kings County Clerk (“Lien No. 1”). A true and correct copy of Lien No. 2 is

annexed hereto as Exhibit “O”.

31. Irrespective of the veracity of the claims made in Winson’s Lien No. 2 – which

Standard disputes in light of Winson having been adjudicated to have breached Contract No. 2 –

the $17,375.00 value of Winson’s Lien is exceeded by the $111,612.00 Arbitrator Rice

determined to be owed by Winson to Standard as damages for breach of Contract No. 2,

pertaining to the 88 Herkimer St. Project. See Exhibit “J”; see also ¶18 supra.

32. In conjunction with its request that this Court enter an Order confirming the Award

issued by Arbitrator Rice, Petitioner hereby requests that the Court exercise its authority to issue

a judgment, pursuant to Lien Law §19(5), “showing a final determination of the action in favor

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of the owner[s] of the propert[ies] against which the lien[s] [were] claimed.” See New York State

Lien Law §19(5).

33. Attached as Exhibit “P” is a proposed Judgment and Order for the Court’s

consideration.

WHEREFORE, Petitioner respectfully requests that (1) pursuant to CPLR §7510, a

Judgment be granted confirming the aforesaid Award, and awarding interest at a rate of 9% per

year from February 27, 2024, and that Judgment be rendered thereon in this court, and (2)

pursuant to New York State Lien Law §19(5), the discharge of Respondent’s Notices of

Mechanic’s Liens and the granting of a Judgment showing a final determination of the action in

favor of the owner(s) of the subject Project properties Nos. 1 and 2 against which Respondent’s

liens were claims, along with such other and further relief as this Court may deem just, proper

and equitable.

Dated: White Plains, New York
April 12, 2024
WELBY, BRADY & GREENBLATT, LLP

Andreas M. Koudellou .

Andreas M. Koudellou
Attorneys for Petitioner
Standard Environmental LLC
11 Martine Avenue, 15th Floor
White Plains, New York 10606
(914) 607-6487
akoudellou@wbgllp.com

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VERIFICATION

STATE OF NEW YORK )
) ss.:
COUNTY OF WESTCHESTER )

Scott Rosenthal, President of Standard Environmental LLC, being duly sworn, deposes

and says:

I have read the foregoing Petition and know the contents thereof; the same is true to my

own knowledge except as to those matters alleged therein to be on information and belief, and as

to those matters I believe them to be true.

The grounds of my belief as to all matters not stated upon my own knowledge are as

follows: my personal recollection and review of various documents in my possession solely in

connection with this matter.

Scott Rosenthal

Sworn before me this

_t day of April 2024

Notary Public

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Complaint,Petition: Standard Environmental Llc v. Winson Construction Inc.

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