Preview
New York Appellate Division Reports
LLC v. LIBY. MUT. INS. CO., 36 A.D.3d 489 [1st Dept 2007]
2007 NY Slip Op 00241, 826 N.Y.S.2d 567
150 NASSAU ASSOCIATES, LLC, Appellant, v. LIBERTY MUTUAL INSURANCE
COMPANY, Respondent.
No. 10.
Appellate Division of the Supreme Court of New York, First Department
January 16, 2007.
Order, Supreme Court, New York County (Charles E. Ramos, J.),
entered November 3, 2005, which granted defendant surety's
motion for partial summary judgment, unanimously affirmed, with
costs.
Snitow Kanfer Holtzer & Millus, LLP, New York (Alan
Heblack of counsel), for appellant.
Westermann Hamilton Sheehy Aydelott & Keenan, LLP, Garden
City (Christopher J. Sheehy of counsel), for respondent.
Before: Gonzalez, J.P., Sweeny, McGuire, Malone and Kavanagh,
JJ.
Plaintiff property owner failed to comply strictly with the
conditions of the performance bond, which went directly to the
surety's liability (see Tishman Kestwide Constr. LLC v ASF
Glass, Inc., 33 AD3d 539 [2006]; 153 Hudson Dev., LLC v
DiNunno, 8 AP3d 77 [2004]), and thus warranted summary
dismissal of that portion of the complaint addressed to the
bond. We have considered plaintiff's other arguments and find
them meritless.
Copyright © 2014 CCH Incorporated or its affiliates
New York Appellate Division Reports
845 UN LIMITED PART v. FLOUR CITY ARCH METALS, 28 A.D.3d 271 [1st Dept 2006]
313 N.Y.S.2d 404, 2006 NY Slip Op 02802
345 UN LIMITED PARTNERSHIP, Respondent-Appellant, v. FLOUR CITY
ARCHITECTURAL METALS, INC., Appellant-Respondent.
7858, 7859.
Appellate Division of the Supreme Court of New York, First Department.
April 13, 2006.
Amended judgment, Supreme Court, New York County (Helen E.
Freedman, J.), entered November 12, 2004, awarding defendant,
after a jury trial, the principal sum of $222,419.61, and
judgment, same court and Justice, entered May 5, 2004, awarding
defendant the principal sum of $1,001,000, which judgments bring
up for review an order of the same court and Justice, entered
August 19, 2004, which denied defendant's motion to vacate an
order, same court and Justice, entered on or about May 12, 2004,
which granted plaintiff's motion to set aside the verdict to the
extent that it had awarded defendant $1,425,000 in damages for
extra work and reduced the award to $626,419.61, and denied
defendant's cross motion to set aside the verdict to the extent
that it awarded plaintiff $424,000 for breach of contract based
on defendant's incomplete work, unanimously reversed, on the law,
without costs, defendant's motions granted and the matter
remanded for a new trial.
Braude & Margulies, P.C., Washington, DC (Herman M. Braude of
counsel), for appellant-respondent.
Mazur, Carp & Rubin, P.C., New York ( I r a M.
Schulrnan of
counsel), for respondent-appellant.
Before: Buckley, P.J., Sullivan, Williams, Gonzalez and
Catterson, JJ. Concur.
This construction contract dispute arises from defendant's
performance in the fabrication and installation of curtainwall
(large glass panels framed in aluminum and anchored in steel) for
Trump Tower. Since undisputed record evidence amply demonstrates
that defendant substantially completed its work, plaintiff owner
was powerless to terminate the contract for defendant's alleged
default, the jury should not have had the issue of defendant's
"material breach" before it, and the verdict should have been
vacated by the trial court (see Norberto & Sons, Inc. v. County
of Nassau, Dept. of Pub. Works, 16 AD3d 642 [2005]). Prior to
plaintiff's attempted contract termination, the owner admitted,
in Payment Requisition No. 29, that work had been completed by
defendant valued at 99.5% of the
Page 272
contract price. Also prior to the attempted termination by
plaintiff, 353 out of 371 condominium units had received
certificates of occupancy from the New York City Department of
Buildings. Significantly, employees of plaintiff's agent, Bovis,
and of plaintiff's general partner. Trump 845 UN GP LLC,
testified that defendant had substantially completed its contract
work before the attempted termination by plaintiff. The
substantial performance rule precludes contract termination and
limits a contracting party to a specific damage remedy (see F.
Garofalo Elec. Co. v. New York Univ., 300 AD2d 186 [2002];
Michael G. Buck & Son Constr. Corp. v. Poncell Constr. Co.,
217 AD2d 925 [1995], Iv denied 86 NY2d 711 [1995]). Given the
undisputed record evidence of substantial performance by
defendant of its contractual obligations and the wrongful
termination by plaintiff, we reverse and remand this matter for a
new trial.
Copyright © 2015 CCH Incorporated or its affiliates
INDEX NO. 65193712010
!FILED: NEW YORK COUNTY CLERK 03/11/20111
N:SCEF DuC. NO. o RECEIVED NYSCEF: 03/11/2011
SUPREME COURT OF THE STATE or NEW YORK
COUNTY OF NEW YORK
------------------------------------x
GOTHA�
LLC,
GREENWICH CONSTRUC�ION CO., Index l.\o. 651937/10 £
?lai:1tiff,
VERIFIED ANSWER
V. OF DEFENDANT
COLONIAL SURETY COMPANY
PHOENlX CONTRACTING GROUP, INC. ar.d
COLONIAL SURETY COMPANY,
Defenda;1ts.
------------------------------------x
Def enda.r.t Co loniai Sure;::_y Company ("Colonial") through iL s
attorneys, McElroy, Jet..:tsct, Mulvaney & Carpenter, �L?, oy way
::if Answer to the Verified Complajnt of
P:...ai;1t:.ff Go:.ha:n G.::-eenw.::..cn Construction Co., LLC (''?lainliff"),
alleges and says Lhe following:
1. Co:onlal denies knowledge or information sufficient :.o
f.orm a be�ie [ as to the truth of the allegations :::ontained in
paragraph "l" o: the Complair1t ana :.r"e same are, :here:::ore,
denied.
L . �pon information and belief, Colonial a::imi-:s the
alleg�tions set forth in paragraph "2 u of the Cornplalnt.
3. Colonial admi�s that .:t is a foreign corpora::ior.
organized p•..1rs'Jant to the laws of the Commonwealth of
Pennsylvania and aut::o:-ized :..o do bUS.iness in the State of Ne·,;
YorK and that its pr�ncipal place of business is located at 50
Chestnut Ridge Read, Montva_e, New Je£sey 07645. :.:xcept as
�xpressly �dmitted, Colonial de�ies the rema�ning allPqations
..:c: +'"c.rtll in paragraph "3" of the Complaint.
,1• Upon �nformation and belief, Colonial adrr.:_ts thal
?la i :1t if f and d.;;fendant Phoenix Contracting Group, Inc.
("Phoenix") entered into a writt.en agreement (the "Subcor.trac�")
for the pcrforrnc'lnce of certain cons1:ruct:1on \\!Ork in connect.icn
dith a project �nown as :he Crosby Hotel located a� :so
wafaye-::te Street: i:1 New Yor'.( City. Coloci.al avers thal the
�ubcontract is a written �nsLruwent and respectfu:!y refers the
�o�rt to the document for its terms, conditions and legal
effeet. Except as expressly adrd tted, Colonia '.. der1.J.es ,:ill
remaining allegations set. forth 1n paragraph "4" of
Complaint.
�. co:or,ia 1 adwits Lssu�ng perfor�ance bonci no. CSC-
( L he "Bona.") i.n conneci:.ion w::. tr. the Subcortract.
Dc!endant avers that. the Bo�d is a written instrument and
respect::ulty refers ::he Co1.1rt t:o -;:r,e document. for its terms,
conditions and legal efrect. Excep--:: as express.1. y ad.T.ittcc..,
Colonial denies a!! remaining allegations set forlh in paragraph
"!:i" ot the Complaint.
,,
FIRST CAUSE OF ACTION
J. Colonial repeals and re-alleges its responses to
e-.rery one of t:1e foregoing alleqar.ions and statemGnts conta.:..ned
in the above paragraphs, as if recjted in full herein.
7. The allegations set forth in paragraph "7" of Lhe
Complaint a:re not directed aga.1:1st Colonial and, t:,erefore,
co::...onial need r:ot respo:10 . To ::.he extent tl�e allega-:i:rns set
.::'o.r:-tr1
.in paragraph ''7" of the Complaint are oirected against
:ol:mial, Colonial denies kno,,: ledge or infoimativP sufficient to
:or:n a belief as to their truth and the same are, t:H�refore,
deniec.
8. The allegations set forth in paragrap� "8 11 of tte
Compla:.nt are not. directed against. Colonia2. anc, -:here fore,
C:olonial need not respond. '!'o the ext:.ent the allegations se:.
:orth ..... r.
paragraph "8" of the Complain': are d1.recLed against
Colonial, Colonial cienies knowledge oc :nformation s�.ficie�t to
form a belie.: as to their tn.r::h a.:id ::he same are, therefo::::e,
denied. Co :on:i a :i. avers the Subcont: ract is a written :.ns:rument
and respectfully refers the Court to the document for its terms,
conditions and legal effect:.
9. Tne allegations set. forth in paragraph "9" of the
Complaint are not directed against co:onial and, therefore,
Colonial need :1ot respond. To the exter..t the allegations set.
forth in paragraph "9" of the Co!"ipJ.aint .:ire dtrect.ed =1ga.:..nst.
3
C�lonial, Colonial denies knowledge or inf�:Mation sufficient tc
:')rm a belief as Lo ::heir tr"Jth ard Lhe same are, therefore,
aen1ed. Coloniai avers the Subcon�ract is a written i�strument
1na respectfu:ly refers the Court to the document for its terms,
cond�Lions a�d legal effect.
10. The al legdtions set forth 1n pcragrdph "1 O" ot the
Complaint ar.e not directed against Colonial and, �herefore,
Colonial need net respond. ':'o the extent the a ;..legations set
,·orth _n parcl.grapn ''10" o-: the Complaint are directed againsL
.:o.:.onial, Colonia::. denies knowledge or information sufficient to
£orrr, a bel.:.ef as to their truth and the same are, theL"efore,
denied. Colonial avers the Subcontract is a written i�strument
and respectfully re::ers the Cour� to the docc.ment ::or 1ts te ---rns,
condi�ions and _egal effGc7.
:'he allcga tio:1s set forth in pdragraph "11" of the
:o�p�a_nt are not directed against Colonial and, there�ore,
. ..
�o ...1 or11a_
.... need not respond. To the extent the allegat ior.s set
forth i:-i paragraph "11" of the Compla Lnt a.r e directed against
Color..idl, Colonic::l denies knowledge or information suffi-.::ienl to
form a bcl ief as to thci r truth ar1d the same 2.re, ::.here fore,
den.ie:::..
12. The rjllegat.:.ons set tor-th in paragraph "12" of the
:o�plaint are no� directed against Colonial and, t.herefore,
Colonial need not. respond. Tc th0. extent the allegations set:
4
forth :r paragraph "'.!.2" of tne Complaint a.re dircc:.ed agair.st
.
r.o�on1a.�,
., ., Coloniai denies �nowledqe or informatioP- scfficient to
form a belie!' to their t.rc:th and th� same arc. therefore,
der.ied.
] 3. Paragraph "13" of :.1:e Complaint states a .:eaa.:.
conclusion to which no respor.se is required. To the extent: a
:-espor.se is :-equireci, Colonial denies knowledge 01 in(o.!:'TTlat i or
sufficient to form a belief as to the truth of the al:egatio�s
c�nca1ned in paragraph "13" of the Complaint and the same are,
therefore, denied.
1'1. The allegations set forth i!"I parag.:'.'aph "1,1" of the
Complaint are not directed against Colonial und, therefore,
Co 1011.:.a::. need no:: respo:.d. To :he extent the alleqations set
£ort.h 2-n paragrapn "14" of the Corr.plaint an:! di.rected aga.::.nst
C0�onLai, Colon�al denies knowledge or informatio� s�fficient to
-Fo,r;-. a belief as to their truth and the same are, therefore,
der:ied. Colonial avers the Subconcracl is a w=itten instrument
and respectfully =efers tne Coucl to the document for jts terms,
condi�ions and legal effecc.
15. Ihe al :egatio:.s set forth in paragraph "15" of tne
C:omplaint. are not oirec�ed against Colonial and, therefo.:.-e,
Co.Loni a: :--eed not respond. To the extent the clllegations se-;:
forth in paragraph "15" of -che Co!nplain'L are directed aqai�st
Colonia., Colonia: denies know:ecge or information su:ficient to
fon-1 a belief ds to their truth and v,.,, samf_ iJre, therefore,
der1ed. Color.ia..:.. avers .:he SubcontracL 2.s a wr:1. tte:1 1nstru11en:
and respecttul}y refe!"s the Court r.o the document for Lls terms,
conditions and legal effect.
16. Paragraph ":6" cf tne Complaint s::ates a leqa.:
-:or-.c_'...ls1on t..o w:uch no response is required. To Lhe extent a
respons€ 1.s reguireci, Colonial ccnies knowledge or ::..ntorma t .:.cm
sufficient. to form a belief as to the truth of Lhe allegalior.s
ccnta.1.ned 1.n paragraph ":6" of -:he Compla.1.nt and tr.c sarr.e are,
therefore, denied.
17. ':'he allegations set for:th in Paragraph ":. 7" of the
�omolaint are not directed against Co!onial ana, therefore,
Colon:i.a 1 need not respond. To ltle extent the allegat1ons set
torth .:n paragraph ": 7" of L,e Comp::.air:t a.re directed :.1gctir:s:
CoJonial, Colonial denies swid allegations.
SECOND CAUSE OF ACTION
18. co;.onia L repeats t1rd re-alleget. its respon:::es i:o ev€ry
0�e of �he fcrego�ng allegations and scatements contained in the
60vve paragrdpns, as if recited i� full herein.
�j. Colonial denies the allegations set forth in paragraph
"19 q of the Complain::.
2u. Paragrap:1 "20" of the Compla.:nt states d legal
conclusion to which no response is required. To the ex::ent .:i
6
respo�se is requi!ed, Colonial denies the alleqatic�s set forth
n paragraph �2o n of the Complaint.
21. Colonial denies the allegations set forth in paragrap�
'·' 21 11
of the Complain':..
AS ANO FOR A FIRST AFFIRMATIVE DEFENSE
The Complaint fails to state a claim upon �hich re:ief can
oe gran::ec.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
?la�ntiff's claim is barred, in whole or in part, by
Plaintiff's failure to satisfy a condition precedent as set
forth in paragraph 3 of the Bona.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
?!a1n:iff's claim is barred, in whole or in par�, by
P�aintiff's failure to satisfy a condition p�ecedent as ser
:orth :n paraqraph 3.1 of the Bond.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
Plaintitf's claim is barred, i� whole oz in par�, by
Plaintiff's failure to satisfy a condition precedent as set
tcrlh 1n paragraph 3.2 of the Bond.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
P.:..alntiff's c:aim :.s ba!'.red, i:1 whole or .i.:1 pa:r-::, by
?laintiff's faLlute to satisfy a condition precedent as set
torth in paragraph 3.3 of the Bond.
7
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
2laintitf's claim ls carred, in whole or ln part, by
?:aintif:'s failure to satisfy a condition precedent as se�
forth in paragraph 5 of che Bone.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
Plaintiff's claim is barred, in whole or in par�, hv
Plai�tiff's �ailure �o sa�isty a condition preceden� as set
forth in paragraph 6 of �he 2ond.
AS AND FOR A EIGHTH AFFIRMATIVE DEFENSE
?la�nt�ff failed to tiMe1y satisfy :.he conditi ons of the
Bond such that Colonial has no liabilily or obligation to
?laintiff under the Bone.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
?lainllf�'s claim is barred, in whole or l� part, by
Pla:ntitt's �ateria' alteration of the bonded contracc.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE
Colonial's liability, if any, Lnder the Bond, is li�iled ty
Lhe cerms thereo:, and Colo�ia� has no liability under the Bend
f0r delay and/or disruption -damages, monies paid by ?laint:ff to
third parties, consequentia2. dc::r.ages, attorneys' .:ees, costs ct
st1-': or: interest. wit:-: respect thereto.
AS AND FOR A ELEVENTH AFFIRMATIVE DEFENSE
Defend ant ' s 1 i ab i l it y, . .;:
i_ any, is limited tc �he penal sum
nf the Bond, and to Lhe extent thdt any entity other than
0
V
?lain::iff is cnti:.led to the oroceeds of the Bond, P2..air.tif::' s
�ncitlemen:, if any, is limited to i�s proportional share.
AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE
?laintiff's claim against co·onial is subject to the
d2f er:ses of the Bond p:r-incipa 1, Phoenix Cont c.acc.. ng Gro·J.p, Inc.
("Phoer.. ix"), ,.ind Colon.:.al incorporates eact. or.e of tnese
jefenses by re±erence and assert the benefits ot same as
.:ief.enses barring or limiting, in who ... e or in pd.rt, Plaintiff's
.; ... airr
aga:_nst the Bond.
AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
?la.Jni:iff ·..:rong::u:i..::..y defa·..1lted and terminotPd t.r:e
Subconcract with Phoenix, such that Colonial has nc liability t.....
�,
Plaintitt under the Bond ..
AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
A� �he time P�aintiff terminated the Subcontract, all �ork
contained within the scope of the Subco�tract had been
�ompleted, sucn that Colonial has no liability to Plaintiff
under t.he Bond.
AS .AND FOR AN FIFTEENTH AFFIRMATIVE DEFENSE
P:aintifi was in defaul� of its oblignticns un1ex the
Subcont-ract and/or Bond, and :r.ere.toYe, Colo�1ial has no
responsibility or :iability under the Bond.
9
AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE
P1aintif! failed to mitigate jts damages �nd/or timely
1efault a�d terminate P�oenix.
AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE
?laintif :' s claim is barred, in whole or in p,u L., by tP.e
Doctrine of Uncle
Preview
New York Appellate Division Reports LLC v. LIBY. MUT. INS. CO., 36 A.D.3d 489 [1st Dept 2007] 2007 NY Slip Op 00241, 826 N.Y.S.2d 567 150 NASSAU ASSOCIATES, LLC, Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY, Respondent. No. 10. Appellate Division of the Supreme Court of New York, First Department January 16, 2007. Order, Supreme Court, New York County (Charles E. Ramos, J.), entered November 3, 2005, which granted defendant surety's motion for partial summary judgment, unanimously affirmed, with costs. Snitow Kanfer Holtzer & Millus, LLP, New York (Alan Heblack of counsel), for appellant. Westermann Hamilton Sheehy Aydelott & Keenan, LLP, Garden City (Christopher J. Sheehy of counsel), for respondent. Before: Gonzalez, J.P., Sweeny, McGuire, Malone and Kavanagh, JJ. Plaintiff property owner failed to comply strictly with the conditions of the performance bond, which went directly to the surety's liability (see Tishman Kestwide Constr. LLC v ASF Glass, Inc., 33 AD3d 539 [2006]; 153 Hudson Dev., LLC v DiNunno, 8 AP3d 77 [2004]), and thus warranted summary dismissal of that portion of the complaint addressed to the bond. We have considered plaintiff's other arguments and find them meritless. Copyright © 2014 CCH Incorporated or its affiliates New York Appellate Division Reports 845 UN LIMITED PART v. FLOUR CITY ARCH METALS, 28 A.D.3d 271 [1st Dept 2006] 313 N.Y.S.2d 404, 2006 NY Slip Op 02802 345 UN LIMITED PARTNERSHIP, Respondent-Appellant, v. FLOUR CITY ARCHITECTURAL METALS, INC., Appellant-Respondent. 7858, 7859. Appellate Division of the Supreme Court of New York, First Department. April 13, 2006. Amended judgment, Supreme Court, New York County (Helen E. Freedman, J.), entered November 12, 2004, awarding defendant, after a jury trial, the principal sum of $222,419.61, and judgment, same court and Justice, entered May 5, 2004, awarding defendant the principal sum of $1,001,000, which judgments bring up for review an order of the same court and Justice, entered August 19, 2004, which denied defendant's motion to vacate an order, same court and Justice, entered on or about May 12, 2004, which granted plaintiff's motion to set aside the verdict to the extent that it had awarded defendant $1,425,000 in damages for extra work and reduced the award to $626,419.61, and denied defendant's cross motion to set aside the verdict to the extent that it awarded plaintiff $424,000 for breach of contract based on defendant's incomplete work, unanimously reversed, on the law, without costs, defendant's motions granted and the matter remanded for a new trial. Braude & Margulies, P.C., Washington, DC (Herman M. Braude of counsel), for appellant-respondent. Mazur, Carp & Rubin, P.C., New York ( I r a M. Schulrnan of counsel), for respondent-appellant. Before: Buckley, P.J., Sullivan, Williams, Gonzalez and Catterson, JJ. Concur. This construction contract dispute arises from defendant's performance in the fabrication and installation of curtainwall (large glass panels framed in aluminum and anchored in steel) for Trump Tower. Since undisputed record evidence amply demonstrates that defendant substantially completed its work, plaintiff owner was powerless to terminate the contract for defendant's alleged default, the jury should not have had the issue of defendant's "material breach" before it, and the verdict should have been vacated by the trial court (see Norberto & Sons, Inc. v. County of Nassau, Dept. of Pub. Works, 16 AD3d 642 [2005]). Prior to plaintiff's attempted contract termination, the owner admitted, in Payment Requisition No. 29, that work had been completed by defendant valued at 99.5% of the Page 272 contract price. Also prior to the attempted termination by plaintiff, 353 out of 371 condominium units had received certificates of occupancy from the New York City Department of Buildings. Significantly, employees of plaintiff's agent, Bovis, and of plaintiff's general partner. Trump 845 UN GP LLC, testified that defendant had substantially completed its contract work before the attempted termination by plaintiff. The substantial performance rule precludes contract termination and limits a contracting party to a specific damage remedy (see F. Garofalo Elec. Co. v. New York Univ., 300 AD2d 186 [2002]; Michael G. Buck & Son Constr. Corp. v. Poncell Constr. Co., 217 AD2d 925 [1995], Iv denied 86 NY2d 711 [1995]). Given the undisputed record evidence of substantial performance by defendant of its contractual obligations and the wrongful termination by plaintiff, we reverse and remand this matter for a new trial. Copyright © 2015 CCH Incorporated or its affiliates INDEX NO. 65193712010 !FILED: NEW YORK COUNTY CLERK 03/11/20111 N:SCEF DuC. NO. o RECEIVED NYSCEF: 03/11/2011 SUPREME COURT OF THE STATE or NEW YORK COUNTY OF NEW YORK ------------------------------------x GOTHA� LLC, GREENWICH CONSTRUC�ION CO., Index l.\o. 651937/10 £ ?lai:1tiff, VERIFIED ANSWER V. OF DEFENDANT COLONIAL SURETY COMPANY PHOENlX CONTRACTING GROUP, INC. ar.d COLONIAL SURETY COMPANY, Defenda;1ts. ------------------------------------x Def enda.r.t Co loniai Sure;::_y Company ("Colonial") through iL s attorneys, McElroy, Jet..:tsct, Mulvaney & Carpenter, �L?, oy way ::if Answer to the Verified Complajnt of P:...ai;1t:.ff Go:.ha:n G.::-eenw.::..cn Construction Co., LLC (''?lainliff"), alleges and says Lhe following: 1. Co:onlal denies knowledge or information sufficient :.o f.orm a be�ie [ as to the truth of the allegations :::ontained in paragraph "l" o: the Complair1t ana :.r"e same are, :here:::ore, denied. L . �pon information and belief, Colonial a::imi-:s the alleg�tions set forth in paragraph "2 u of the Cornplalnt. 3. Colonial admi�s that .:t is a foreign corpora::ior. organized p•..1rs'Jant to the laws of the Commonwealth of Pennsylvania and aut::o:-ized :..o do bUS.iness in the State of Ne·,; YorK and that its pr�ncipal place of business is located at 50 Chestnut Ridge Read, Montva_e, New Je£sey 07645. :.:xcept as �xpressly �dmitted, Colonial de�ies the rema�ning allPqations ..:c: +'"c.rtll in paragraph "3" of the Complaint. ,1• Upon �nformation and belief, Colonial adrr.:_ts thal ?la i :1t if f and d.;;fendant Phoenix Contracting Group, Inc. ("Phoenix") entered into a writt.en agreement (the "Subcor.trac�") for the pcrforrnc'lnce of certain cons1:ruct:1on \\!Ork in connect.icn dith a project �nown as :he Crosby Hotel located a� :so wafaye-::te Street: i:1 New Yor'.( City. Coloci.al avers thal the �ubcontract is a written �nsLruwent and respectfu:!y refers the �o�rt to the document for its terms, conditions and legal effeet. Except as expressly adrd tted, Colonia '.. der1.J.es ,:ill remaining allegations set. forth 1n paragraph "4" of Complaint. �. co:or,ia 1 adwits Lssu�ng perfor�ance bonci no. CSC- ( L he "Bona.") i.n conneci:.ion w::. tr. the Subcortract. Dc!endant avers that. the Bo�d is a written instrument and respect::ulty refers ::he Co1.1rt t:o -;:r,e document. for its terms, conditions and legal efrect. Excep--:: as express.1. y ad.T.ittcc.., Colonial denies a!! remaining allegations set forlh in paragraph "!:i" ot the Complaint. ,, FIRST CAUSE OF ACTION J. Colonial repeals and re-alleges its responses to e-.rery one of t:1e foregoing alleqar.ions and statemGnts conta.:..ned in the above paragraphs, as if recjted in full herein. 7. The allegations set forth in paragraph "7" of Lhe Complaint a:re not directed aga.1:1st Colonial and, t:,erefore, co::...onial need r:ot respo:10 . To ::.he extent tl�e allega-:i:rns set .::'o.r:-tr1 .in paragraph ''7" of the Complaint are oirected against :ol:mial, Colonial denies kno,,: ledge or infoimativP sufficient to :or:n a belief as to their truth and the same are, t:H�refore, deniec. 8. The allegations set forth in paragrap� "8 11 of tte Compla:.nt are not. directed against. Colonia2. anc, -:here fore, C:olonial need not respond. '!'o the ext:.ent the allegations se:. :orth ..... r. paragraph "8" of the Complain': are d1.recLed against Colonial, Colonial cienies knowledge oc :nformation s�.ficie�t to form a belie.: as to their tn.r::h a.:id ::he same are, therefo::::e, denied. Co :on:i a :i. avers the Subcont: ract is a written :.ns:rument and respectfully refers the Court to the document for its terms, conditions and legal effect:. 9. Tne allegations set. forth in paragraph "9" of the Complaint are not directed against co:onial and, therefore, Colonial need :1ot respond. To the exter..t the allegations set. forth in paragraph "9" of the Co!"ipJ.aint .:ire dtrect.ed =1ga.:..nst. 3 C�lonial, Colonial denies knowledge or inf�:Mation sufficient tc :')rm a belief as Lo ::heir tr"Jth ard Lhe same are, therefore, aen1ed. Coloniai avers the Subcon�ract is a written i�strument 1na respectfu:ly refers the Court to the document for its terms, cond�Lions a�d legal effect. 10. The al legdtions set forth 1n pcragrdph "1 O" ot the Complaint ar.e not directed against Colonial and, �herefore, Colonial need net respond. ':'o the extent the a ;..legations set ,·orth _n parcl.grapn ''10" o-: the Complaint are directed againsL .:o.:.onial, Colonia::. denies knowledge or information sufficient to £orrr, a bel.:.ef as to their truth and the same are, theL"efore, denied. Colonial avers the Subcontract is a written i�strument and respectfully re::ers the Cour� to the docc.ment ::or 1ts te ---rns, condi�ions and _egal effGc7. :'he allcga tio:1s set forth in pdragraph "11" of the :o�p�a_nt are not directed against Colonial and, there�ore, . .. �o ...1 or11a_ .... need not respond. To the extent the allegat ior.s set forth i:-i paragraph "11" of the Compla Lnt a.r e directed against Color..idl, Colonic::l denies knowledge or information suffi-.::ienl to form a bcl ief as to thci r truth ar1d the same 2.re, ::.here fore, den.ie:::.. 12. The rjllegat.:.ons set tor-th in paragraph "12" of the :o�plaint are no� directed against Colonial and, t.herefore, Colonial need not. respond. Tc th0. extent the allegations set: 4 forth :r paragraph "'.!.2" of tne Complaint a.re dircc:.ed agair.st . r.o�on1a.�, ., ., Coloniai denies �nowledqe or informatioP- scfficient to form a belie!' to their t.rc:th and th� same arc. therefore, der.ied. ] 3. Paragraph "13" of :.1:e Complaint states a .:eaa.:. conclusion to which no respor.se is required. To the extent: a :-espor.se is :-equireci, Colonial denies knowledge 01 in(o.!:'TTlat i or sufficient to form a belief as to the truth of the al:egatio�s c�nca1ned in paragraph "13" of the Complaint and the same are, therefore, denied. 1'1. The allegations set forth i!"I parag.:'.'aph "1,1" of the Complaint are not directed against Colonial und, therefore, Co 1011.:.a::. need no:: respo:.d. To :he extent the alleqations set £ort.h 2-n paragrapn "14" of the Corr.plaint an:! di.rected aga.::.nst C0�onLai, Colon�al denies knowledge or informatio� s�fficient to -Fo,r;-. a belief as to their truth and the same are, therefore, der:ied. Colonial avers the Subconcracl is a w=itten instrument and respectfully =efers tne Coucl to the document for jts terms, condi�ions and legal effecc. 15. Ihe al :egatio:.s set forth in paragraph "15" of tne C:omplaint. are not oirec�ed against Colonial and, therefo.:.-e, Co.Loni a: :--eed not respond. To the extent the clllegations se-;: forth in paragraph "15" of -che Co!nplain'L are directed aqai�st Colonia., Colonia: denies know:ecge or information su:ficient to fon-1 a belief ds to their truth and v,.,, samf_ iJre, therefore, der1ed. Color.ia..:.. avers .:he SubcontracL 2.s a wr:1. tte:1 1nstru11en: and respecttul}y refe!"s the Court r.o the document for Lls terms, conditions and legal effect. 16. Paragraph ":6" cf tne Complaint s::ates a leqa.: -:or-.c_'...ls1on t..o w:uch no response is required. To Lhe extent a respons€ 1.s reguireci, Colonial ccnies knowledge or ::..ntorma t .:.cm sufficient. to form a belief as to the truth of Lhe allegalior.s ccnta.1.ned 1.n paragraph ":6" of -:he Compla.1.nt and tr.c sarr.e are, therefore, denied. 17. ':'he allegations set for:th in Paragraph ":. 7" of the �omolaint are not directed against Co!onial ana, therefore, Colon:i.a 1 need not respond. To ltle extent the allegat1ons set torth .:n paragraph ": 7" of L,e Comp::.air:t a.re directed :.1gctir:s: CoJonial, Colonial denies swid allegations. SECOND CAUSE OF ACTION 18. co;.onia L repeats t1rd re-alleget. its respon:::es i:o ev€ry 0�e of �he fcrego�ng allegations and scatements contained in the 60vve paragrdpns, as if recited i� full herein. �j. Colonial denies the allegations set forth in paragraph "19 q of the Complain::. 2u. Paragrap:1 "20" of the Compla.:nt states d legal conclusion to which no response is required. To the ex::ent .:i 6 respo�se is requi!ed, Colonial denies the alleqatic�s set forth n paragraph �2o n of the Complaint. 21. Colonial denies the allegations set forth in paragrap� '·' 21 11 of the Complain':.. AS ANO FOR A FIRST AFFIRMATIVE DEFENSE The Complaint fails to state a claim upon �hich re:ief can oe gran::ec. AS AND FOR A SECOND AFFIRMATIVE DEFENSE ?la�ntiff's claim is barred, in whole or in part, by Plaintiff's failure to satisfy a condition precedent as set forth in paragraph 3 of the Bona. AS AND FOR A THIRD AFFIRMATIVE DEFENSE ?!a1n:iff's claim is barred, in whole or in par�, by P�aintiff's failure to satisfy a condition p�ecedent as ser :orth :n paraqraph 3.1 of the Bond. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE Plaintitf's claim is barred, i� whole oz in par�, by Plaintiff's failure to satisfy a condition precedent as set tcrlh 1n paragraph 3.2 of the Bond. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE P.:..alntiff's c:aim :.s ba!'.red, i:1 whole or .i.:1 pa:r-::, by ?laintiff's faLlute to satisfy a condition precedent as set torth in paragraph 3.3 of the Bond. 7 AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 2laintitf's claim ls carred, in whole or ln part, by ?:aintif:'s failure to satisfy a condition precedent as se� forth in paragraph 5 of che Bone. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE Plaintiff's claim is barred, in whole or in par�, hv Plai�tiff's �ailure �o sa�isty a condition preceden� as set forth in paragraph 6 of �he 2ond. AS AND FOR A EIGHTH AFFIRMATIVE DEFENSE ?la�nt�ff failed to tiMe1y satisfy :.he conditi ons of the Bond such that Colonial has no liabilily or obligation to ?laintiff under the Bone. AS AND FOR A NINTH AFFIRMATIVE DEFENSE ?lainllf�'s claim is barred, in whole or l� part, by Pla:ntitt's �ateria' alteration of the bonded contracc. AS AND FOR A TENTH AFFIRMATIVE DEFENSE Colonial's liability, if any, Lnder the Bond, is li�iled ty Lhe cerms thereo:, and Colo�ia� has no liability under the Bend f0r delay and/or disruption -damages, monies paid by ?laint:ff to third parties, consequentia2. dc::r.ages, attorneys' .:ees, costs ct st1-': or: interest. wit:-: respect thereto. AS AND FOR A ELEVENTH AFFIRMATIVE DEFENSE Defend ant ' s 1 i ab i l it y, . .;: i_ any, is limited tc �he penal sum nf the Bond, and to Lhe extent thdt any entity other than 0 V ?lain::iff is cnti:.led to the oroceeds of the Bond, P2..air.tif::' s �ncitlemen:, if any, is limited to i�s proportional share. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE ?laintiff's claim against co·onial is subject to the d2f er:ses of the Bond p:r-incipa 1, Phoenix Cont c.acc.. ng Gro·J.p, Inc. ("Phoer.. ix"), ,.ind Colon.:.al incorporates eact. or.e of tnese jefenses by re±erence and assert the benefits ot same as .:ief.enses barring or limiting, in who ... e or in pd.rt, Plaintiff's .; ... airr aga:_nst the Bond. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE ?la.Jni:iff ·..:rong::u:i..::..y defa·..1lted and terminotPd t.r:e Subconcract with Phoenix, such that Colonial has nc liability t..... �, Plaintitt under the Bond .. AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE A� �he time P�aintiff terminated the Subcontract, all �ork contained within the scope of the Subco�tract had been �ompleted, sucn that Colonial has no liability to Plaintiff under t.he Bond. AS .AND FOR AN FIFTEENTH AFFIRMATIVE DEFENSE P:aintifi was in defaul� of its oblignticns un1ex the Subcont-ract and/or Bond, and :r.ere.toYe, Colo�1ial has no responsibility or :iability under the Bond. 9 AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE P1aintif! failed to mitigate jts damages �nd/or timely 1efault a�d terminate P�oenix. AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE ?laintif :' s claim is barred, in whole or in p,u L., by tP.e Doctrine of Uncle