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FILED: CHAUTAUQUA COUNTY CLERK 02/26/2020 02:28 PM INDEX NO. EK12020000352
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/26/2020
STATE OF NEW YORK
SUPREME COURT COUNTY OF CHAUTAUQUA
MAJOR STEARNS D/B/A Plaintiff designates the
CLEAR GLASS COMMUNICATIONS County of Chautauqua as the
314 Bragg Road place of trial.
Frewsburg, New York 14738
Plaintiff, SUMMONS
-vs-
Index No.:
ROYAL CONTRACTING LLC
114 Mary Street
Binghamton, New York 13903 The basis of the venue
designated is CPLR § 503
Defendant.
___________________________________________________
TO THE ABOVE-NAMED DEFENDANT:
YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve
a copy of your answer on the attorney for plaintiff within twenty (20) days after the service of this
summons, exclusive of the day of service, where service is made by delivery upon you personally
within the state, or within thirty (30) days after completion of service where service is made in any
other manner. In case of your failure to appear or answer, judgment will be taken against you by
default for the relief demanded in the complaint.
The basis of the venue designated is the county in which the Plaintiff resides.
Dated: February 26, 2020 BRIAN R. HENZEL PLLC
By: Brian R. Henzel, Esq.
Attorneys for Plaintiff
P.O. Box 888
Pittsford, New York 14534
Phone: 585.749.1612
Fax: 585.486.3830
Brian@BrianHenzel.com
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FILED: CHAUTAUQUA COUNTY CLERK 02/26/2020 02:28 PM INDEX NO. EK12020000352
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/26/2020
STATE OF NEW YORK
SUPREME COURT COUNTY OF CHAUTAUQUA
MAJOR STEARNS D/B/A
CLEAR GLASS COMMUNICATIONS
Plaintiff, COMPLAINT
-vs-
Index No.:
ROYAL CONTRACTING LLC
Defendant.
__________________________________________________
Plaintiff Major Stearns, doing business as Clear Glass Communications, by and through
undersigned counsel, as and for its complaint against the defendant alleges as follows:
PARTIES
1. The plaintiff Major Stearns d/b/a Clear Glass Communications, at all times relevant
to the claims asserted herein, is an individual who operates under an assumed name and who
maintains a principal place of business at 314 Bragg Road, Frewsburg, New York 14738
(“Plaintiff” or “Clear Glass”).
2. The defendant Royal Contracting LLC, upon information and belief, is a limited
liability company duly formed and existing pursuant to the laws of the State of New York and
maintains its principal place of business at 114 Mary Street, Binghamton, New York 13903
(“Defendant” or “Royal Contracting”).
JURISDICTION AND VENUE
3. This is an action for Defendant’s breach of an agreement to pay Plaintiff for labor,
materials and services provided by Plaintiff for the Delhi Telephone New York State Broadband
Project in the Trout Creek, Masonville and Walton areas of New York State.
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NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/26/2020
4. The Court has jurisdiction of this matter pursuant to CPLR §§ 301, 304 and 311-a
and because the amount demanded exceeds the jurisdiction of all lower courts.
5. Venue in the County of Chautauqua is proper because it is the county of
residence for the Plaintiff.
STATEMENT OF FACTS
6. Plaintiff repeats, realleges and incorporates herein by reference each and every
allegation set forth above, with the same force and effect as though more fully set forth at length
herein.
7. At all times hereinafter mentioned, Plaintiff was a resident of the State of New York
and is engaged in the business of installing, maintaining and servicing fiber optic cable networks.
8. Upon information and belief, Royal Contracting is a limited liability company
whose purpose is to construct and install commercial fiber optic networks and was a prime
contractor on the Delphi Telephone Company (“DTC”) fiber optic network project in Delaware
County, New York (the “Project”).
9. Defendant retained Plaintiff to be a subcontractor on the Project and to perform
work and provide services pursuant to the parties’ subcontractor agreement dated May 1, 2019 (the
“Subcontractor Agreement”). A true and accurate copy of the Subcontractor Agreement is
attached hereto and incorporated by reference as Exhibit “A.”
10. Pursuant to the Subcontractor Agreement, Plaintiff was responsible for performing
all work and to furnish all supervision, labor, materials, tools and equipment for the splicing,
testing and maintenance of the fiber optic network.
11. Defendant, as the prime contractor for DTC, agreed to pay Plaintiff at a rate of
$70.00 per hour per man and further agreed to pay Plaintiff compensation for various other
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materials and services as further set forth in the Subcontractor Agreement pay sheet (the “Pay
Sheet”).
12. Defendant and Plaintiff agreed that any payments due Plaintiff for services and
materials would be paid within seven (7) days following receipt of payment by Defendant from
DTC.
13. Defendant and Plaintiff further agreed that in the event any litigation was
commenced between Plaintiff and Defendant related to the Subcontractor Agreement, the
prevailing party “shall be entitled to recover reasonable attorney’s fees, costs and expenses
incurred in connection with the litigation.”
FIRST CAUSE OF ACTION
(Breach of Contract)
14. Plaintiff repeats, realleges and incorporates herein by reference each and every
allegation set forth above, with the same force and effect as though more fully set forth at length
herein.
15. The Subcontractor Agreement was duly authorized and executed by Plaintiff and
Defendant and that agreement created valid and enforceable contractual obligations for the
provision of fiber optic installation and maintenance services.
16. Plaintiff provided all materials and labor and performed all work in a timely,
competent and workmanlike manner in strict accordance and full compliance with the
requirements of the Subcontractor Agreement.
17. Plaintiff satisfied, or Defendant waived, all of Plaintiff’s contractual obligations to
Defendant pursuant to the Subcontractor Agreement including satisfaction of any conditions
precedent required for the payment to Plaintiff for the materials and services rendered.
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18. Despite multiple demands, Defendant has not made full payment to Plaintiff for the
materials and services rendered by Plaintiff.
19. Defendant’s refusal to pay Plaintiff for the materials and services rendered by
Plaintiffs is a material breach of the Subcontractor Agreement and has caused Plaintiff financial
harm in excess of $100,00.00 for the materials and services rendered, exclusive of interest, costs,
disbursements and attorneys’ fees.
20. By reason of the foregoing there is due Plaintiff from Defendant on its First Cause
of Action the sum of $106,549.70, together with interest at the maximum amount permitted under
New York Law, along with the costs and disbursements incurred in prosecuting this action.
21. Additionally, Defendant is liable to Plaintiff for the reasonable attorneys’ fees
incurred by Plaintiff in the prosecution of this action pursuant to the explicit terms of the
Subcontractor Agreement.
SECOND CAUSE OF ACTION
(Quantum Meruit/Unjust Enrichment)
22. Plaintiff repeats, realleges and incorporates herein by reference each and every
allegation set forth above, with the same force and effect as though more fully set forth at length
herein.
23. Plaintiff furnished materials and fiber optic installation services to Defendant which
services were used to improve the Property, and which resulted in Defendant realizing income and
profits as the prime contractor of the Project.
24. Defendant received and retained the benefit of the valuable materials and services
provided by Plaintiff and Defendant received and accepted those materials and services with the
knowledge that Plaintiff expected payment for the materials and services provided.
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25. Plaintiff provided materials and fiber optic installation services in a competent,
professional manner and in full satisfaction and compliance with the Subcontractor Agreement,
and Plaintiff had a reasonable expectation of payment for his services.
26. Defendant was fully aware of Plaintiff’s reasonable expectation of payment and, as
a result, Defendant has been unjustly enriched to Plaintiff’s detriment based upon its failure to
compensate Plaintiff for the materials and services provided by him.
27. By reason of the foregoing and according to the principles of fairness and equity,
and to avoid the unjust enrichment of Defendant, Major Stearns is entitled to payment from Royal
Contracting on its Second Cause of Action the sum of $106,549.70 which is the reasonable value
of the materials and services provided, together with interest, costs, disbursements and attorneys’
fees.
WHEREFORE, Plaintiff demands Judgment in its favor against the Defendant as follows:
1. Compensatory damages in favor of Plaintiff, Major Stearns, against Defendant,
Royal Contracting LLC, on his First Cause of Action in the amount of $106,549.70, plus interest
at the maximum statutory rate along with an award of their costs and disbursements; and
2. Compensatory damages in favor of Plaintiff, Major Stearns, against Defendant,
Royal Contracting LLC, on his Second Cause of Action in the amount of $106,549.70, plus interest
at the maximum statutory rate along with an award of their costs and disbursements; and
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3. An award of reasonable attorneys’ fees in an amount to be determined by the Court
at the conclusion of this action.
Dated: February 26, 2020 BRIAN R. HENZEL PLLC
By: Brian R. Henzel, Esq.
Attorneys for Plaintiff
P.O. Box 888
Pittsford, New York 14534
Phone: 585.749.1612
Fax: 585.486.3830
Brian@BrianHenzel.com
TO: Royal Contracting LLC
114 Mary Street
Binghamton, New York 13903
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Preview
FILED: CHAUTAUQUA COUNTY CLERK 02/26/2020 02:28 PM INDEX NO. EK12020000352 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/26/2020 STATE OF NEW YORK SUPREME COURT COUNTY OF CHAUTAUQUA MAJOR STEARNS D/B/A Plaintiff designates the CLEAR GLASS COMMUNICATIONS County of Chautauqua as the 314 Bragg Road place of trial. Frewsburg, New York 14738 Plaintiff, SUMMONS -vs- Index No.: ROYAL CONTRACTING LLC 114 Mary Street Binghamton, New York 13903 The basis of the venue designated is CPLR § 503 Defendant. ___________________________________________________ TO THE ABOVE-NAMED DEFENDANT: YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve a copy of your answer on the attorney for plaintiff within twenty (20) days after the service of this summons, exclusive of the day of service, where service is made by delivery upon you personally within the state, or within thirty (30) days after completion of service where service is made in any other manner. In case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint. The basis of the venue designated is the county in which the Plaintiff resides. Dated: February 26, 2020 BRIAN R. HENZEL PLLC By: Brian R. Henzel, Esq. Attorneys for Plaintiff P.O. Box 888 Pittsford, New York 14534 Phone: 585.749.1612 Fax: 585.486.3830 Brian@BrianHenzel.com 1 of 7 FILED: CHAUTAUQUA COUNTY CLERK 02/26/2020 02:28 PM INDEX NO. EK12020000352 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/26/2020 STATE OF NEW YORK SUPREME COURT COUNTY OF CHAUTAUQUA MAJOR STEARNS D/B/A CLEAR GLASS COMMUNICATIONS Plaintiff, COMPLAINT -vs- Index No.: ROYAL CONTRACTING LLC Defendant. __________________________________________________ Plaintiff Major Stearns, doing business as Clear Glass Communications, by and through undersigned counsel, as and for its complaint against the defendant alleges as follows: PARTIES 1. The plaintiff Major Stearns d/b/a Clear Glass Communications, at all times relevant to the claims asserted herein, is an individual who operates under an assumed name and who maintains a principal place of business at 314 Bragg Road, Frewsburg, New York 14738 (“Plaintiff” or “Clear Glass”). 2. The defendant Royal Contracting LLC, upon information and belief, is a limited liability company duly formed and existing pursuant to the laws of the State of New York and maintains its principal place of business at 114 Mary Street, Binghamton, New York 13903 (“Defendant” or “Royal Contracting”). JURISDICTION AND VENUE 3. This is an action for Defendant’s breach of an agreement to pay Plaintiff for labor, materials and services provided by Plaintiff for the Delhi Telephone New York State Broadband Project in the Trout Creek, Masonville and Walton areas of New York State. 2 of 7 FILED: CHAUTAUQUA COUNTY CLERK 02/26/2020 02:28 PM INDEX NO. EK12020000352 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/26/2020 4. The Court has jurisdiction of this matter pursuant to CPLR §§ 301, 304 and 311-a and because the amount demanded exceeds the jurisdiction of all lower courts. 5. Venue in the County of Chautauqua is proper because it is the county of residence for the Plaintiff. STATEMENT OF FACTS 6. Plaintiff repeats, realleges and incorporates herein by reference each and every allegation set forth above, with the same force and effect as though more fully set forth at length herein. 7. At all times hereinafter mentioned, Plaintiff was a resident of the State of New York and is engaged in the business of installing, maintaining and servicing fiber optic cable networks. 8. Upon information and belief, Royal Contracting is a limited liability company whose purpose is to construct and install commercial fiber optic networks and was a prime contractor on the Delphi Telephone Company (“DTC”) fiber optic network project in Delaware County, New York (the “Project”). 9. Defendant retained Plaintiff to be a subcontractor on the Project and to perform work and provide services pursuant to the parties’ subcontractor agreement dated May 1, 2019 (the “Subcontractor Agreement”). A true and accurate copy of the Subcontractor Agreement is attached hereto and incorporated by reference as Exhibit “A.” 10. Pursuant to the Subcontractor Agreement, Plaintiff was responsible for performing all work and to furnish all supervision, labor, materials, tools and equipment for the splicing, testing and maintenance of the fiber optic network. 11. Defendant, as the prime contractor for DTC, agreed to pay Plaintiff at a rate of $70.00 per hour per man and further agreed to pay Plaintiff compensation for various other 2 3 of 7 FILED: CHAUTAUQUA COUNTY CLERK 02/26/2020 02:28 PM INDEX NO. EK12020000352 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/26/2020 materials and services as further set forth in the Subcontractor Agreement pay sheet (the “Pay Sheet”). 12. Defendant and Plaintiff agreed that any payments due Plaintiff for services and materials would be paid within seven (7) days following receipt of payment by Defendant from DTC. 13. Defendant and Plaintiff further agreed that in the event any litigation was commenced between Plaintiff and Defendant related to the Subcontractor Agreement, the prevailing party “shall be entitled to recover reasonable attorney’s fees, costs and expenses incurred in connection with the litigation.” FIRST CAUSE OF ACTION (Breach of Contract) 14. Plaintiff repeats, realleges and incorporates herein by reference each and every allegation set forth above, with the same force and effect as though more fully set forth at length herein. 15. The Subcontractor Agreement was duly authorized and executed by Plaintiff and Defendant and that agreement created valid and enforceable contractual obligations for the provision of fiber optic installation and maintenance services. 16. Plaintiff provided all materials and labor and performed all work in a timely, competent and workmanlike manner in strict accordance and full compliance with the requirements of the Subcontractor Agreement. 17. Plaintiff satisfied, or Defendant waived, all of Plaintiff’s contractual obligations to Defendant pursuant to the Subcontractor Agreement including satisfaction of any conditions precedent required for the payment to Plaintiff for the materials and services rendered. 3 4 of 7 FILED: CHAUTAUQUA COUNTY CLERK 02/26/2020 02:28 PM INDEX NO. EK12020000352 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/26/2020 18. Despite multiple demands, Defendant has not made full payment to Plaintiff for the materials and services rendered by Plaintiff. 19. Defendant’s refusal to pay Plaintiff for the materials and services rendered by Plaintiffs is a material breach of the Subcontractor Agreement and has caused Plaintiff financial harm in excess of $100,00.00 for the materials and services rendered, exclusive of interest, costs, disbursements and attorneys’ fees. 20. By reason of the foregoing there is due Plaintiff from Defendant on its First Cause of Action the sum of $106,549.70, together with interest at the maximum amount permitted under New York Law, along with the costs and disbursements incurred in prosecuting this action. 21. Additionally, Defendant is liable to Plaintiff for the reasonable attorneys’ fees incurred by Plaintiff in the prosecution of this action pursuant to the explicit terms of the Subcontractor Agreement. SECOND CAUSE OF ACTION (Quantum Meruit/Unjust Enrichment) 22. Plaintiff repeats, realleges and incorporates herein by reference each and every allegation set forth above, with the same force and effect as though more fully set forth at length herein. 23. Plaintiff furnished materials and fiber optic installation services to Defendant which services were used to improve the Property, and which resulted in Defendant realizing income and profits as the prime contractor of the Project. 24. Defendant received and retained the benefit of the valuable materials and services provided by Plaintiff and Defendant received and accepted those materials and services with the knowledge that Plaintiff expected payment for the materials and services provided. 4 5 of 7 FILED: CHAUTAUQUA COUNTY CLERK 02/26/2020 02:28 PM INDEX NO. EK12020000352 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/26/2020 25. Plaintiff provided materials and fiber optic installation services in a competent, professional manner and in full satisfaction and compliance with the Subcontractor Agreement, and Plaintiff had a reasonable expectation of payment for his services. 26. Defendant was fully aware of Plaintiff’s reasonable expectation of payment and, as a result, Defendant has been unjustly enriched to Plaintiff’s detriment based upon its failure to compensate Plaintiff for the materials and services provided by him. 27. By reason of the foregoing and according to the principles of fairness and equity, and to avoid the unjust enrichment of Defendant, Major Stearns is entitled to payment from Royal Contracting on its Second Cause of Action the sum of $106,549.70 which is the reasonable value of the materials and services provided, together with interest, costs, disbursements and attorneys’ fees. WHEREFORE, Plaintiff demands Judgment in its favor against the Defendant as follows: 1. Compensatory damages in favor of Plaintiff, Major Stearns, against Defendant, Royal Contracting LLC, on his First Cause of Action in the amount of $106,549.70, plus interest at the maximum statutory rate along with an award of their costs and disbursements; and 2. Compensatory damages in favor of Plaintiff, Major Stearns, against Defendant, Royal Contracting LLC, on his Second Cause of Action in the amount of $106,549.70, plus interest at the maximum statutory rate along with an award of their costs and disbursements; and 5 6 of 7 FILED: CHAUTAUQUA COUNTY CLERK 02/26/2020 02:28 PM INDEX NO. EK12020000352 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/26/2020 3. An award of reasonable attorneys’ fees in an amount to be determined by the Court at the conclusion of this action. Dated: February 26, 2020 BRIAN R. HENZEL PLLC By: Brian R. Henzel, Esq. Attorneys for Plaintiff P.O. Box 888 Pittsford, New York 14534 Phone: 585.749.1612 Fax: 585.486.3830 Brian@BrianHenzel.com TO: Royal Contracting LLC 114 Mary Street Binghamton, New York 13903 6 7 of 7