Preview
FILED: NASSAU COUNTY CLERK 09/23/2020 08:09 PM INDEX NO. 606340/2020
NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 09/23/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
------------------------------------------------------------ x
CIG, LLC d/b/a ELEVATIONS SHORING LLC,
Plaintiff, Index No. 606340/2020
-against- AFFIDAVIT OF RANDY
GASPARD IN
LIPSKY BUILDING CONSTRUCTION, INC., OPPOSITION TO
BARRY LIPSKY, GOVERNOR'S OFFICE OF GOVERNOR'S OFFICE
STORM RECOVERY, HOUSING TRUST FUND OF STORM RECOVERY
CORP., YOLETTE LOUIS, MICHAEL CERVERIZZO, AND HOUSING TRUST
ROBERT POPP, COLLEÈN POPP, RANDY FUND CORP.'S
TENNARIELLO, MARIE TENNARIELLO, MOTION TO DISMISS
KEVIN O'CONNELL
Defendants.
------------ --x
STATE OF LOUISIANA )
CO
RANDY GASPARD, hereby affirms under penalty of perjury:
1. I am a Managing Member of CIG, LLC c/b/a Elevations Shoring LLC and submit
this Affidavit in Opposition to Governor's Office of Storm Recovery and Housing Trust Fund
Corp.'s motion to dismiss.
2. I have reviewed the Motion to Dismiss by Governor's Office of Storm Recovery
and Housing Trust Fund Corp., and dispute any claims that the state should be dismissed as they
activity agreed in writing in their e mails and in our personal meetings to take on the responsibly
to pay my company.
3. They even insisted I waive my mechanic's lien rights on the completed work to
work with them as explained in my e mails.
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4. It ispossible the law firm filing this Motion to Dismiss had no idea the level of
involvement of the Governor's Office of Storm Recovery and the Housing Trust Fund as there is
no Affidavit from any of the people I worked with who promised me payment.
5. As stated by the Movant in their Memorandum of Law, in Article 5.3 of the
Agreement,"
"Construction HTFC specifically provides for accepting a direct relationship with a
subcontractor as alleged in the Complaint. The agreement states "No dealings of any kind
whatsoever between HTFC or Homeowner and any Subcontractor shall be deemed a waiver of
the foregoing by HTFC unless HTFC (at HTFC's election) specifically agrees otherwise in
writings."
(Emphasis added, Movant's Exhibit A).
6. In this case, there are written emails confirming that the HTFC/GOSR requested I
remove my mechanic's liens and instead work with them, to assure my payment.
7. This is evident from the e mails between me and the Defendants employees Joe
Massa and Michael Murphy, some of which are contained herein. (See Exhibit 1, February 20,
2019 Email from me to Michael Murphy and Exhibit 2, July 20, 2018 emails to Joe Massa from
my office).
8. This was done totally for the benefit of HTFC/GOSR as they convinced me to not
file liens on the various properties after I had filed one lien and release itupon their insistence
with promise CIG would be paid in full.
9. My February 20, 2019 email to Michael Murphy of GOSR states: "Michael, First
and foremost, I would like to thank you for your attention to this matter thus far. Following our
22nd
January meeting and the subsequent request from Lipsky, BIG has provide all
documentation requested by Lipsky Construction and sent copies to your office as well.
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th
Subsequently Lipsky failed to show upon to our meeting on February 11 in Farmingdale and
invoices."
has not paid any of their outstanding (Se Exhibit 1, attachment)
"
10. It further states I would like to note a previous attempt to lien 46 Maple resulted
in my GOSR payments being tolled, as much as I would hope this doesn't happeñ again, I have
been forced into a position with no other alternative."(See Exhibit 1, attachment).
11. As you can see, CIG, (I personally) was asked to remove a lien I filed on the
Project at 46 Maple, Inwood on June 4, 2018, which was then notice on June 14, 2018 in the
amount of $10,735.00. (See Exhibit 4, Lien)
12. Exhibit 2 shows payment tolled by Marco Principato of HTFC and the
corresponding emails between CIG and GOSR. CIG wrote on July 20, 2018, "Where [sic] my
payments tolled because I liened a Lipsky's job for nonpayment.
13. Even after I agreed to remove it,because Mike Murphy GOSR would see that I
paid?"
got (Exhibit 2). Joe Massa of GOSR responded on the same day, "I understand Mike
up."
Murphy is getting this cleared (Exhibit 2).
14. Five days later on July 25, 2018, CIG again emailed Joe Massa about the toll, to
reviewed."
which Joe Massa responded "The toll has been removed and are [sic] they are being
15. Exhibit 1 shows direct communication on February 20, 2019, between Randy
Gaspard of CIG and Mike Murphy of GOSR regarding the outstanding balances. The letter
attached to the email references a December 18, 2018 meeting between Murphy and Gaspard,
where they discussed Lipsky's outstanding.
16. These writings exemplify direct involvement by the Moving Defendants and
Agreement."
raises material issues of fact regarding Article 5.3 of the "Construction
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17. Furthermore, CIG itselfwas forced to use HTFC's website to obtain payment
from Lipsky. Critically, as of June 17, 2002, HTFC's website reflects that only 91.22% of
payment has been completed. (See Exhibit 3, printout from elationsys.com).
18. Therefore, HTFC was an active participant in the renovation through the
exclusive use of their website, which completely belies their claim of noninvolvement.
19. I am informed many of the documents relied upon by the Movant are
inadmissible.
20. The documents prepared by CIG however, namely the conditional Final Lien
Waivers I can speak upon in detail.
21. Movant's Exhibit M is the conditional Subcontractors Final Release and Waiver
of Lien for 3263 Weidner, Oceanside, NY signed by Plaintiff, effective upon an "in
consideration of payment of $202,465.36".
22. As stated in the Complaint, the payment was not in fact made, and thus under
controlling legal authority set forth in the Memorandum of Law, the conditional lien waiver is
moot. (See Amended Complaint Fifth COA, Para. 49-57)
23. Moreover, this fact of the non payment by Lipsky was well-known to the
members of the Governor's Office of Storm Recovery and Housing Trust Fund Corp. as show in
in the many e mails between Randy Gaspard, Managing Member of Plaintiff and various
employees of the GOSR and HTFC.
24. Movant's Exhibit N is the conditional Subcontractors Final Release and Waiver
of Lien for 3 E. Sampson, East Rockaway signed by Plaintiff, effective upon an "in consideration
of payment of $139,684.63".
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25. As stated in the Complaint the payment was not in fact made, and thus under
controlling legal authority set forth in the Memorandum of Law, the conditional lien waiver is
moot. (See Amended Complaint Seventh COA, Para. 64-72)
26. Moreover, this fact of the non payment by Lipsky was well-known to the
members of the Governor's Office of Storm Recovery and Housing Trust Fund Corp. as shown
in in the many e mails between Randy Gaspard, Managing Member of Plaintiff and various
employees of the GOSR and HTFC.
27. Movant's Exhibit O is the conditional Subcontractors Final Release and Waiver
of Lien for 123 Saint Marks Place SW, Massapequa NY signed by Plaintiff, effective upon an
"in consideration of payment of $112,202.82".
28. As stated in the Complaint, the payment was not in fact made, and thus under
controlling legal authority set forth in the Memorandum of Law, the conditional lien waiver is
moot. (See Amended Complaint Ninth COA, Para. 79-87)
29. Moreover, this fact of the non payment by Lipsky was well-known to the
members of the Governor's Office of Storm Recovery and Housing Trust Fund Corp. as shown
in in the many e mails between Randy Gaspard, Managing Member of Plaintiff and various
employees of the GOSR and HTFC.
30. Wherefore, I respectfully request the Motion to Dismiss be denied in its entirety.
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NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 09/23/2020
Randy Ga pard
Sworn to before me this
23rd day of September, 2020
Notarý public
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Preview
FILED: NASSAU COUNTY CLERK 09/23/2020 08:09 PM INDEX NO. 606340/2020 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 09/23/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU ------------------------------------------------------------ x CIG, LLC d/b/a ELEVATIONS SHORING LLC, Plaintiff, Index No. 606340/2020 -against- AFFIDAVIT OF RANDY GASPARD IN LIPSKY BUILDING CONSTRUCTION, INC., OPPOSITION TO BARRY LIPSKY, GOVERNOR'S OFFICE OF GOVERNOR'S OFFICE STORM RECOVERY, HOUSING TRUST FUND OF STORM RECOVERY CORP., YOLETTE LOUIS, MICHAEL CERVERIZZO, AND HOUSING TRUST ROBERT POPP, COLLEÈN POPP, RANDY FUND CORP.'S TENNARIELLO, MARIE TENNARIELLO, MOTION TO DISMISS KEVIN O'CONNELL Defendants. ------------ --x STATE OF LOUISIANA ) CO RANDY GASPARD, hereby affirms under penalty of perjury: 1. I am a Managing Member of CIG, LLC c/b/a Elevations Shoring LLC and submit this Affidavit in Opposition to Governor's Office of Storm Recovery and Housing Trust Fund Corp.'s motion to dismiss. 2. I have reviewed the Motion to Dismiss by Governor's Office of Storm Recovery and Housing Trust Fund Corp., and dispute any claims that the state should be dismissed as they activity agreed in writing in their e mails and in our personal meetings to take on the responsibly to pay my company. 3. They even insisted I waive my mechanic's lien rights on the completed work to work with them as explained in my e mails. 1 of 6 FILED: NASSAU COUNTY CLERK 09/23/2020 08:09 PM INDEX NO. 606340/2020 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 09/23/2020 4. It ispossible the law firm filing this Motion to Dismiss had no idea the level of involvement of the Governor's Office of Storm Recovery and the Housing Trust Fund as there is no Affidavit from any of the people I worked with who promised me payment. 5. As stated by the Movant in their Memorandum of Law, in Article 5.3 of the Agreement," "Construction HTFC specifically provides for accepting a direct relationship with a subcontractor as alleged in the Complaint. The agreement states "No dealings of any kind whatsoever between HTFC or Homeowner and any Subcontractor shall be deemed a waiver of the foregoing by HTFC unless HTFC (at HTFC's election) specifically agrees otherwise in writings." (Emphasis added, Movant's Exhibit A). 6. In this case, there are written emails confirming that the HTFC/GOSR requested I remove my mechanic's liens and instead work with them, to assure my payment. 7. This is evident from the e mails between me and the Defendants employees Joe Massa and Michael Murphy, some of which are contained herein. (See Exhibit 1, February 20, 2019 Email from me to Michael Murphy and Exhibit 2, July 20, 2018 emails to Joe Massa from my office). 8. This was done totally for the benefit of HTFC/GOSR as they convinced me to not file liens on the various properties after I had filed one lien and release itupon their insistence with promise CIG would be paid in full. 9. My February 20, 2019 email to Michael Murphy of GOSR states: "Michael, First and foremost, I would like to thank you for your attention to this matter thus far. Following our 22nd January meeting and the subsequent request from Lipsky, BIG has provide all documentation requested by Lipsky Construction and sent copies to your office as well. 2 2 of 6 FILED: NASSAU COUNTY CLERK 09/23/2020 08:09 PM INDEX NO. 606340/2020 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 09/23/2020 th Subsequently Lipsky failed to show upon to our meeting on February 11 in Farmingdale and invoices." has not paid any of their outstanding (Se Exhibit 1, attachment) " 10. It further states I would like to note a previous attempt to lien 46 Maple resulted in my GOSR payments being tolled, as much as I would hope this doesn't happeñ again, I have been forced into a position with no other alternative."(See Exhibit 1, attachment). 11. As you can see, CIG, (I personally) was asked to remove a lien I filed on the Project at 46 Maple, Inwood on June 4, 2018, which was then notice on June 14, 2018 in the amount of $10,735.00. (See Exhibit 4, Lien) 12. Exhibit 2 shows payment tolled by Marco Principato of HTFC and the corresponding emails between CIG and GOSR. CIG wrote on July 20, 2018, "Where [sic] my payments tolled because I liened a Lipsky's job for nonpayment. 13. Even after I agreed to remove it,because Mike Murphy GOSR would see that I paid?" got (Exhibit 2). Joe Massa of GOSR responded on the same day, "I understand Mike up." Murphy is getting this cleared (Exhibit 2). 14. Five days later on July 25, 2018, CIG again emailed Joe Massa about the toll, to reviewed." which Joe Massa responded "The toll has been removed and are [sic] they are being 15. Exhibit 1 shows direct communication on February 20, 2019, between Randy Gaspard of CIG and Mike Murphy of GOSR regarding the outstanding balances. The letter attached to the email references a December 18, 2018 meeting between Murphy and Gaspard, where they discussed Lipsky's outstanding. 16. These writings exemplify direct involvement by the Moving Defendants and Agreement." raises material issues of fact regarding Article 5.3 of the "Construction 3 3 of 6 FILED: NASSAU COUNTY CLERK 09/23/2020 08:09 PM INDEX NO. 606340/2020 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 09/23/2020 17. Furthermore, CIG itselfwas forced to use HTFC's website to obtain payment from Lipsky. Critically, as of June 17, 2002, HTFC's website reflects that only 91.22% of payment has been completed. (See Exhibit 3, printout from elationsys.com). 18. Therefore, HTFC was an active participant in the renovation through the exclusive use of their website, which completely belies their claim of noninvolvement. 19. I am informed many of the documents relied upon by the Movant are inadmissible. 20. The documents prepared by CIG however, namely the conditional Final Lien Waivers I can speak upon in detail. 21. Movant's Exhibit M is the conditional Subcontractors Final Release and Waiver of Lien for 3263 Weidner, Oceanside, NY signed by Plaintiff, effective upon an "in consideration of payment of $202,465.36". 22. As stated in the Complaint, the payment was not in fact made, and thus under controlling legal authority set forth in the Memorandum of Law, the conditional lien waiver is moot. (See Amended Complaint Fifth COA, Para. 49-57) 23. Moreover, this fact of the non payment by Lipsky was well-known to the members of the Governor's Office of Storm Recovery and Housing Trust Fund Corp. as show in in the many e mails between Randy Gaspard, Managing Member of Plaintiff and various employees of the GOSR and HTFC. 24. Movant's Exhibit N is the conditional Subcontractors Final Release and Waiver of Lien for 3 E. Sampson, East Rockaway signed by Plaintiff, effective upon an "in consideration of payment of $139,684.63". 4 4 of 6 FILED: NASSAU COUNTY CLERK 09/23/2020 08:09 PM INDEX NO. 606340/2020 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 09/23/2020 25. As stated in the Complaint the payment was not in fact made, and thus under controlling legal authority set forth in the Memorandum of Law, the conditional lien waiver is moot. (See Amended Complaint Seventh COA, Para. 64-72) 26. Moreover, this fact of the non payment by Lipsky was well-known to the members of the Governor's Office of Storm Recovery and Housing Trust Fund Corp. as shown in in the many e mails between Randy Gaspard, Managing Member of Plaintiff and various employees of the GOSR and HTFC. 27. Movant's Exhibit O is the conditional Subcontractors Final Release and Waiver of Lien for 123 Saint Marks Place SW, Massapequa NY signed by Plaintiff, effective upon an "in consideration of payment of $112,202.82". 28. As stated in the Complaint, the payment was not in fact made, and thus under controlling legal authority set forth in the Memorandum of Law, the conditional lien waiver is moot. (See Amended Complaint Ninth COA, Para. 79-87) 29. Moreover, this fact of the non payment by Lipsky was well-known to the members of the Governor's Office of Storm Recovery and Housing Trust Fund Corp. as shown in in the many e mails between Randy Gaspard, Managing Member of Plaintiff and various employees of the GOSR and HTFC. 30. Wherefore, I respectfully request the Motion to Dismiss be denied in its entirety. 5 5 of 6 FILED: NASSAU COUNTY CLERK 09/23/2020 08:09 PM INDEX NO. 606340/2020 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 09/23/2020 Randy Ga pard Sworn to before me this 23rd day of September, 2020 Notarý public 6 of 6