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BRONX COUNTY CLERK 0571472013) INDEX NO. 20552/2013E
'NYSCEF DOC. NQ.
5 RECEIVED NYSCEF: °05/14/2)13
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
x
Index No. 20552/2013E
UNITED TRANSIT MIX, INC.,
Plaintiff(s),
VERIFIED ANSWER
- against -
TAN DEVELOPMENT LLC, AMG ELTON LLC and
“JOHN DOE 1” through “JOHN DOE 10,” said
parties being lienors who have yet to perfect
their liens and being fictitious and unknows to
plaintiff,
Defendant(s).
Defendant(s), AMG ELTON LLC, by the Defendants’ attorney,
HARRY RAPTAKIS, ESQ., answering the Complaint of the Plaintiff herein,
upon information and belief, alleges as follows:
1. Denies knowledge and information sufficient to form a belief as
to the allegations contained in paragraph(s) of the complaint therein
designated "1", "2","5","6", and "7".
2. Admits each and every allegation contained in the paragraph(s)
of the complaint therein designated "3" and “4”.AS AND FOR AN ANSWER TO THE
ALLEGED FIRST CAUSE OF ACTION
3. Defendant AMG Elton LLC repeats and reiterates each and every
denial set forth in paragraphs "1" and “2” above as if said denials were set
forth at length herein.
4. Denies knowledge and information sufficient to form a belief as
to the allegations contained in paragraph(s) of the complaint therein
designated "9", "10","13", and "14".
5. Denies knowledge and information sufficient to form a belief as
to the allegations contained in the paragraph(s) of the complaint therein
designated "11", except to admit that on or about December 21, 2012,
plaintiff United caused to be filed with the Clerk of the County of Bronx, a
Notice Under Mechanic’s Lien in the sum of $23,013.73, and refer to all
questions of law.
6. Denies knowledge and information sufficient to form a belief as
to the allegations contained in the paragraph(s) of the complaint therein
designated “12”, except to admit that plaintiff United served a copy of said
lien upon defendant AMG, and refer to all questions of law.
7. Denies each and every allegation contained in paragraph “16” of
the complaint and refer to all questions of lawAS AND FOR AN ANSWER TO THE
ALLEGED SECOND CAUSE OF ACTION
8. Defendant AMG Elton LLC repeats and reiterates each and every
denial set forth in paragraphs "1" through “7” above as if said denials were
set forth at length herein.
9. Denies knowledge and information sufficient to form a belief as
to the allegations contained in paragraph(s) of the complaint therein
designated "18", "19", and "20".
AS AND FOR AN ANSWER TO THE
ALLEGED THIRD CAUSE OF ACTION
10. Defendant AMG Elton LLC repeats and reiterates each and every
denial set forth in paragraphs "1" through “9” above as if said denials were
set forth at length herein.
11. Denies knowledge and information sufficient to form a belief as
to the allegations contained in paragraph(s) of the complaint therein
designated "22", "23", and "24".
AS AND FOR AN ANSWER TO THE
GED FO! Al ACTION
12. Defendant AMG Elton LLC repeats and reiterates each and every
denial set forth in paragraphs "1" through “11” above as if said denials were
set forth at length herein.
13. Denies knowledge and information sufficient to form a belief as
to the allegations contained in paragraph(s) of the complaint therein
designated "26", "27", and "28".AS Al RATE, DISTINCT AND COMPLETE AFFIR'
DEFENSE TO THE AL! E F ACTION SE TH IN THE
OMPLAINT, DEFENDANT AM N_LLC ALLEGE:
14. That the complaint fails to state a cause of action upon which
relief can be granted.
A RATE, DISTINCT AND COMPLE FFIRMATIVE
EFE HE ALLE E IF ET FO
LAINT, AMG EL ALLEGE:
15. That the defendant AMG ELTON LLC is not a proper party to this
action.
AS AND FOR A SEPA' DISTINCT AN PLETE AFFIRM, E
DEFENSE TO THE AL D CAUSE TION SET FORTH IN THE
COMPLAINT, DEFENDANT(S) AMG ELTON LLC ALLEGE:
16. That if the cause(s) of action alleged in plaintiffs complaint are
based in whole or in part on any agreement and/or contract with plaintiff
United Transit Mix, Inc. and/or defendant Tan Development LLC, no such
agreement or contract, if any, was ever made in writing and subscribed by
the defendant AMG ELTON LLC. Any such agreement and/or contract, if any,
is therefore void and unenforceable against this answering defendant under
the statute of frauds.
AS AND FOR A SEPARATE, DISTINCT AND COMPLI AF E
DE TO THE AL! ED CAUSE OF ACTION F
MPLAINT, DEFENDANT(S ELTON ALL :
17. That if the causes(s) of action alleged in plaintiffs complaint are
based in whole or in part on any agreement and/or contract, any suchagreement and/or contract, if any, was waived, abandoned, rescinded and
made otherwise void and unenforceable due to plaintiffs non-performance.
AS AND FOR A CR' LAIM AGAINST
CODEFENDANT TAN DEVELOPMENT LLC
18. If it is determined that the plaintiff, United transit Mix, Inc., was
retained by the co-defendant, Tan Development LLC, to provide the work
alleged by plaintiff, and if this answering defendant is determined to be liable
for any damages as alleged in the plaintiffs complaint, such damages were
occasioned by reason of the primary, active, sole and affirmative negligence,
both of omission and/or commission, and by breach of duty and breach of
contract and breach of warranty by the co-defendant, Tan Development LLC,
and the defendant AMG ELTON LLC is entitled to judgment against the co-
defendant, Tan Development LLC, to the extent it was paid for the work
performed by plaintiff by reason of co-defendant’s unjust enrichment
common law indemnity and general principles of equity.
AS AND FOR AN AFFIRMATIVE DEFENSE AGAINST
CODEFENDANT TAN DEVELOPMENT LLC
19. Defendant, AMG Elton LLC has no privity of contract with either
plaintiff, United Transit Mix, Inc. or defendant, Tan Development LLC.TO:
WHEREFORE, the defendant, AMG ELTON LLC, demands
judgment:
1. Dismissing the complaint and,
2. For contribution and/or indemnification on the claim
over against co-defendant, Tan Development LLC,
and
3. For costs and disbursements and attorney fees
against all adverse parties.
DATED: Mineola, New York
April 25, 2013 ZPE
H RAPTAKIS, ESQ.
‘orneys for Defendant
AMG ELTON LLC
88 Second Street
Mineola, New York 11501
(516) 747-2478
Joshua D. Olsen, Esq.
Mastropietro-Frade, LLC
The Chancery
190 Willis Ave.
Mineola, NY 11501
Tan Development LLC
23 Monterey Drive
Manhasset Hills, NY 11040STATE OF NEW YORK )
COUNTY OF NASSAU)
HARRY RAPTAKIS, being an attorney duly admitted to practice before
this court, affirms the following statement to be true under the penalties of
perjury:
He is the attorney for defendant, AMG ELTON LLC, in the within action;
that he has read the foregoing ANSWER and knows the contents thereof,
that the same is true to the best of his own knowledge, except as to the
matters therein stated to be alleged on information and belief, and that as to
those matters he believes them to be true.
The reason this verification is not made by the defendants is that they
reside and are located outside the County where we maintain our offices.
The source of deponent's information and the grounds for his belief, as
to those matters stated upon information and belief, are statements
furnished to deponent and records in deponent's file.
-
HARRY RAPTAKIS
coSTATE OF NEW YORK )
)SS.:
COUNTY OF NASSAU )
MADELYN MACAVOY, being duly sworn says: I am not a party to the within
action, am over 18 years of age and reside at Massapequa Park, New York.
On April 25, 2013, I served a true copy of the annexed VERIFIED ANSWER, by
mailing same via regular mail in sealed envelopes, with postage prepaid thereon, in a post-office
or official depository of the U.S. Postal Service within the State of New York, addressed to the
last known address of the addressee(s) as indicated below:
TO: Joshua D. Olsen, Esq.
Mastropietro-Frade, LLC
The Chancery
190 Willis Ave.
Mineola, NY 11501
Tan Development LLC
23 Monterey Drive
Manhasset Hills, NY 11040
MADELYN MACAVOY
Sworn to before me this
25™ day of April, 2013.
RY RAPTAKIS
Notary Public
ee fy Public, State of New York
7435
aIndex No. 20552/2013E
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
UNITED TRANSIT MIX, INC.,
Plaintiff,
Vv.
TAN DEVELOPMENT LLC, AMG ELTON LLC and
“JOHN DOE 1” through “JOHN DOE 10,” said
parties being lienors who have yet to perfect
their liens and being fictitious and unknows to
plaintiff,
Defendant.
VERIFIED ANSWER
HARRY RAPTAKIS, ESQS.
Attorney for Defendant
AMG ELTON LLC
88 Second Street
Mineola, New York 11501
(516) 739-5140
PLEASE TAKE NOTICE
that the within is a true copy of an
entered in the office of the clerk of the within named Court on
that an of which the within is a true copy will be presented for settlement to the Hon.
one of the Judges of the within named Court on
Attorrley for Defendant
AMG ELTON LLC
88 Second Street
Mineola, New York 11501
By signing of the within document, the above attorney certifies that, to the best of the said attorney's knowledge, information
and belief, formed after an inquiry reasonable under the circumstances, the presentation of this document or the contentions
therein are not frivolous as defined in subsection (c) of Section 130-1.1 of the Rules of the Chief Administrator (22NYCRR).
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BRONX COUNTY CLERK 0571472013) INDEX NO. 20552/2013E 'NYSCEF DOC. NQ. 5 RECEIVED NYSCEF: °05/14/2)13 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX x Index No. 20552/2013E UNITED TRANSIT MIX, INC., Plaintiff(s), VERIFIED ANSWER - against - TAN DEVELOPMENT LLC, AMG ELTON LLC and “JOHN DOE 1” through “JOHN DOE 10,” said parties being lienors who have yet to perfect their liens and being fictitious and unknows to plaintiff, Defendant(s). Defendant(s), AMG ELTON LLC, by the Defendants’ attorney, HARRY RAPTAKIS, ESQ., answering the Complaint of the Plaintiff herein, upon information and belief, alleges as follows: 1. Denies knowledge and information sufficient to form a belief as to the allegations contained in paragraph(s) of the complaint therein designated "1", "2","5","6", and "7". 2. Admits each and every allegation contained in the paragraph(s) of the complaint therein designated "3" and “4”.AS AND FOR AN ANSWER TO THE ALLEGED FIRST CAUSE OF ACTION 3. Defendant AMG Elton LLC repeats and reiterates each and every denial set forth in paragraphs "1" and “2” above as if said denials were set forth at length herein. 4. Denies knowledge and information sufficient to form a belief as to the allegations contained in paragraph(s) of the complaint therein designated "9", "10","13", and "14". 5. Denies knowledge and information sufficient to form a belief as to the allegations contained in the paragraph(s) of the complaint therein designated "11", except to admit that on or about December 21, 2012, plaintiff United caused to be filed with the Clerk of the County of Bronx, a Notice Under Mechanic’s Lien in the sum of $23,013.73, and refer to all questions of law. 6. Denies knowledge and information sufficient to form a belief as to the allegations contained in the paragraph(s) of the complaint therein designated “12”, except to admit that plaintiff United served a copy of said lien upon defendant AMG, and refer to all questions of law. 7. Denies each and every allegation contained in paragraph “16” of the complaint and refer to all questions of lawAS AND FOR AN ANSWER TO THE ALLEGED SECOND CAUSE OF ACTION 8. Defendant AMG Elton LLC repeats and reiterates each and every denial set forth in paragraphs "1" through “7” above as if said denials were set forth at length herein. 9. Denies knowledge and information sufficient to form a belief as to the allegations contained in paragraph(s) of the complaint therein designated "18", "19", and "20". AS AND FOR AN ANSWER TO THE ALLEGED THIRD CAUSE OF ACTION 10. Defendant AMG Elton LLC repeats and reiterates each and every denial set forth in paragraphs "1" through “9” above as if said denials were set forth at length herein. 11. Denies knowledge and information sufficient to form a belief as to the allegations contained in paragraph(s) of the complaint therein designated "22", "23", and "24". AS AND FOR AN ANSWER TO THE GED FO! Al ACTION 12. Defendant AMG Elton LLC repeats and reiterates each and every denial set forth in paragraphs "1" through “11” above as if said denials were set forth at length herein. 13. Denies knowledge and information sufficient to form a belief as to the allegations contained in paragraph(s) of the complaint therein designated "26", "27", and "28".AS Al RATE, DISTINCT AND COMPLETE AFFIR' DEFENSE TO THE AL! E F ACTION SE TH IN THE OMPLAINT, DEFENDANT AM N_LLC ALLEGE: 14. That the complaint fails to state a cause of action upon which relief can be granted. A RATE, DISTINCT AND COMPLE FFIRMATIVE EFE HE ALLE E IF ET FO LAINT, AMG EL ALLEGE: 15. That the defendant AMG ELTON LLC is not a proper party to this action. AS AND FOR A SEPA' DISTINCT AN PLETE AFFIRM, E DEFENSE TO THE AL D CAUSE TION SET FORTH IN THE COMPLAINT, DEFENDANT(S) AMG ELTON LLC ALLEGE: 16. That if the cause(s) of action alleged in plaintiffs complaint are based in whole or in part on any agreement and/or contract with plaintiff United Transit Mix, Inc. and/or defendant Tan Development LLC, no such agreement or contract, if any, was ever made in writing and subscribed by the defendant AMG ELTON LLC. Any such agreement and/or contract, if any, is therefore void and unenforceable against this answering defendant under the statute of frauds. AS AND FOR A SEPARATE, DISTINCT AND COMPLI AF E DE TO THE AL! ED CAUSE OF ACTION F MPLAINT, DEFENDANT(S ELTON ALL : 17. That if the causes(s) of action alleged in plaintiffs complaint are based in whole or in part on any agreement and/or contract, any suchagreement and/or contract, if any, was waived, abandoned, rescinded and made otherwise void and unenforceable due to plaintiffs non-performance. AS AND FOR A CR' LAIM AGAINST CODEFENDANT TAN DEVELOPMENT LLC 18. If it is determined that the plaintiff, United transit Mix, Inc., was retained by the co-defendant, Tan Development LLC, to provide the work alleged by plaintiff, and if this answering defendant is determined to be liable for any damages as alleged in the plaintiffs complaint, such damages were occasioned by reason of the primary, active, sole and affirmative negligence, both of omission and/or commission, and by breach of duty and breach of contract and breach of warranty by the co-defendant, Tan Development LLC, and the defendant AMG ELTON LLC is entitled to judgment against the co- defendant, Tan Development LLC, to the extent it was paid for the work performed by plaintiff by reason of co-defendant’s unjust enrichment common law indemnity and general principles of equity. AS AND FOR AN AFFIRMATIVE DEFENSE AGAINST CODEFENDANT TAN DEVELOPMENT LLC 19. Defendant, AMG Elton LLC has no privity of contract with either plaintiff, United Transit Mix, Inc. or defendant, Tan Development LLC.TO: WHEREFORE, the defendant, AMG ELTON LLC, demands judgment: 1. Dismissing the complaint and, 2. For contribution and/or indemnification on the claim over against co-defendant, Tan Development LLC, and 3. For costs and disbursements and attorney fees against all adverse parties. DATED: Mineola, New York April 25, 2013 ZPE H RAPTAKIS, ESQ. ‘orneys for Defendant AMG ELTON LLC 88 Second Street Mineola, New York 11501 (516) 747-2478 Joshua D. Olsen, Esq. Mastropietro-Frade, LLC The Chancery 190 Willis Ave. Mineola, NY 11501 Tan Development LLC 23 Monterey Drive Manhasset Hills, NY 11040STATE OF NEW YORK ) COUNTY OF NASSAU) HARRY RAPTAKIS, being an attorney duly admitted to practice before this court, affirms the following statement to be true under the penalties of perjury: He is the attorney for defendant, AMG ELTON LLC, in the within action; that he has read the foregoing ANSWER and knows the contents thereof, that the same is true to the best of his own knowledge, except as to the matters therein stated to be alleged on information and belief, and that as to those matters he believes them to be true. The reason this verification is not made by the defendants is that they reside and are located outside the County where we maintain our offices. The source of deponent's information and the grounds for his belief, as to those matters stated upon information and belief, are statements furnished to deponent and records in deponent's file. - HARRY RAPTAKIS coSTATE OF NEW YORK ) )SS.: COUNTY OF NASSAU ) MADELYN MACAVOY, being duly sworn says: I am not a party to the within action, am over 18 years of age and reside at Massapequa Park, New York. On April 25, 2013, I served a true copy of the annexed VERIFIED ANSWER, by mailing same via regular mail in sealed envelopes, with postage prepaid thereon, in a post-office or official depository of the U.S. Postal Service within the State of New York, addressed to the last known address of the addressee(s) as indicated below: TO: Joshua D. Olsen, Esq. Mastropietro-Frade, LLC The Chancery 190 Willis Ave. Mineola, NY 11501 Tan Development LLC 23 Monterey Drive Manhasset Hills, NY 11040 MADELYN MACAVOY Sworn to before me this 25™ day of April, 2013. RY RAPTAKIS Notary Public ee fy Public, State of New York 7435 aIndex No. 20552/2013E SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX UNITED TRANSIT MIX, INC., Plaintiff, Vv. TAN DEVELOPMENT LLC, AMG ELTON LLC and “JOHN DOE 1” through “JOHN DOE 10,” said parties being lienors who have yet to perfect their liens and being fictitious and unknows to plaintiff, Defendant. VERIFIED ANSWER HARRY RAPTAKIS, ESQS. Attorney for Defendant AMG ELTON LLC 88 Second Street Mineola, New York 11501 (516) 739-5140 PLEASE TAKE NOTICE that the within is a true copy of an entered in the office of the clerk of the within named Court on that an of which the within is a true copy will be presented for settlement to the Hon. one of the Judges of the within named Court on Attorrley for Defendant AMG ELTON LLC 88 Second Street Mineola, New York 11501 By signing of the within document, the above attorney certifies that, to the best of the said attorney's knowledge, information and belief, formed after an inquiry reasonable under the circumstances, the presentation of this document or the contentions therein are not frivolous as defined in subsection (c) of Section 130-1.1 of the Rules of the Chief Administrator (22NYCRR).